ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014265
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967
Date of Adjudication Hearing: 02/08/2018
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
In accordance Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and S39 of the Redundancy Payments Acts, 1967following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant was employed by the Respondent company from 1st May 2010 to 30th April 2017. This Company is owned by her former husband. The Complainant was unaware that her P45 issued on 30th April 2017 and she had been dismissed. She was not sent a copy of her P45.
Summary of Complainant’s Case:
The Complainant says she input data for the Respondent company from time to time. She received a fixed payment monthly directly from her former husband. She subsequently became estranged from her husband. She did not work for the company after the parties became estranged. The Complainant believed that her position would continue with the company following Court proceedings in April 2017. She was unaware that her position with the company terminated on 30th April 2017 as the payments by her former husband continued. She only became aware that her position terminated in April 2017 when she sought her P45 some months later.
She says she was told by the Workplace Relations Commission that she had 12 months to lodge an unfair dismissal complaint from the date of her dismissal. She was reluctant to do this as she did not want cause trouble with her former husband. This was the reason for her delay in lodging her complaint from the date she discovered her dismissal in December 2017 until the complaint was lodged on 20th April 2018. She seeks an extension of time in order to pursue her complaint of unfair dismissal.
The Complainant says it was agreed that the status quo would be kept in place following Court proceedings in April 2017 and her PRSI would be paid. There is no written record of any agreement in the Court documents. She received 6 months of payslips in 2016. She never received pay directly from the Respondent.
She is not aware if her position still exists or has been filled. She believes her former husband removed his name from the company. She is actively seeking work. In the alternative, she seeks redundancy due.
Summary of Respondent’s Case:
The Respondent denies the Complainant was dismissed, and that she is entitled to redundancy or compensation. No work was ever carried out by the Complainant for the Company. The Respondent objects to the presentation of the complaint as it is outside the statutory time-limit of 6 months from date of dismissal on 30th April 2017. The Complainant also made a complaint to Nera which was investigated and no issues of concern were raised.
The Respondent says that the termination of the Complainant’s employment arrangement was at the Court’s direction in April 2017 following a Court hearing. The Complainant’s former husband was not present to give evidence at the hearing. He is not a Director and is an employee of the Company. The Respondent says the payment of 1,600 euro monthly to the Complainant was a payment arrangement for tax-efficiency with the Complainant’s agreement. The Complainant’s income did not change following her dismissal and the payments continue to be made by her former husband. The Respondent provided text messages showing that the Complainant requested termination of employment in December 2017 and cessation of links with the company which employs her former husband.
The Respondent terminated the Complainant’s employment on 30th April 2017 following the Court hearing.
Findings and Conclusions:
I have heard the oral evidence of the parties at the hearing and considered the written submissions of the Respondent made on 9th and 23rd August 2018, and those of the Complainant on 8th, 12th,31st of August and 3rd of September 2018.
S6 (1) of the Unfair Dismissals Acts 1977-2015 states:
“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act to be an unfair dismissal, unless having regard to all the circumstances, there were substantial grounds justifying the dismissal”.
In order for the Unfair Dismissals Acts 1977-2015 to apply, the Complainant must be an employee of the Respondent.
The Act defines an “employee” as meaning “an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative”.
The Complainant’s evidence is that she has no written contract of employment with the Respondent. She worked from time doing data inputting. The Respondent disputes that the Complainant was ever employed and claims there was a tax-efficient employment arrangement in place for the married couple. The Respondent says no work was ever carried out by the Complainant. The Complainant’s evidence is that she had no set hours or specific tasks to complete. The work done was occasional, yet payment was consistent. She did not perform any tasks for the Respondent after the parties became estranged, yet she continued to be paid the same monthly amount.
There are a number of legal tests developed by the courts over the years to assist in distinguishing between employees and self-employed contractors and other categories of employment relationship. The control test was traditionally applied to establish the nature of the relationship of subordination, the integration test to clarify whether the person is integrated into the employer’s organisation, the “mixed test”, and “entrepreneur test” as to whether the individual is in business on his or her account and is not an employee. Each case is considered on its own specific facts in light of the general principles.
The High Court in the Minister for Agriculture v Barry  I IR 215 said in relation to principle of mutuality of obligation in an employment relationship:
“The requirement of mutuality of obligation is the requirement that there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer. If such mutuality is not present, then either there is no contract at all or whatever contract there is must be a contract for services or something else, but not a contract of service…..Where one party to a work relationship contends that the relationship amounts to a contract of service, it is appropriate that the court or tribunal seized of the issue should in the first instance examine the relationship in question to determine if mutuality of obligation is a feature of it. If there is no mutuality of obligation it is not necessary to go further: whatever the relationship is, it cannot amount to a contract of service”.
From the evidence adduced by the Complainant, I find there is no evidence of mutuality of obligation in the relationship between the parties, and this is supported by the fact that payments by the Respondent were consistent regardless of whether or not work was done. In light of the evidence, I find the Complainant is not an employee of the Respondent and accordingly her complaint of unfair dismissal fails.
The Complainant seeks a redundancy payment in relation to the period of her employment with the Respondent.
S4 (a) of the Redundancy Payments Act 1967 states that the Act applies to employees employed in employment which is insurable for all benefits under the Social Welfare (Consolidation) Act 2005.
In light of the findings in CA-00018638-001 that the Complainant is not an employee of the Respondent, the Complainant’s claim for a redundancy also fails.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
S39 of the Redundancy Payments Acts 1967-2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act
I find the Complainant is not an employee of the Respondent and accordingly her complaint of unfair dismissal fails.
In light of the finding that the Complainant is not an employee of the Respondent, her claim for a redundancy payment also fails.
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Nature of employment relationship, tests for employee or contractor, mutuality of obligation, tax-efficiency arrangement