FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : GEORGINA TULLY - AND - LAURA MCNAMEE DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No ADJ-00024851. This is an appeal by Ms Laura McNamee (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00024851, dated 9 April 2020) under the Organisation of Working Time Act 1997 (‘the Act’). The Complainant’s Notice of Appeal was received by the Court on 19 May 2020. The Court heard the within appeal (together with an appeal by the Forever Therapies Limited (‘the Respondent’) and cross-appeal by the Complainant under the Employment Equality Act 1998 – ADE/20/107) in Dublin on 31 August 2021. The Complainant is seeking retrospective payment for annual leave and public holiday entitlements for the entire period of her working relationship with the Respondent (and its predecessors). BRIEF SUMMARY OF PARTIES’ WORKING RELATIONSHIP: The Complainant commenced working for Ms Georgina Tully on a part-time basis as a Wholistic Therapist in 2009. At that time Ms Tully operated as a sole trader. Ms Tully registered a business name – Forever Therapies – in 2010 and subsequently incorporated her business as Forever Therapies Limited in July 2017. The Complainant ceased to be offered work by the Respondent in mid-December 2017. For the duration of her service with the Respondent and its predecessors, the Complainant has also had her own business providing holistic therapies to private clients. Likewise, during the entire period of the relationship, the Complainant engaged with Ms Tully, Forever Therapies and Forever Therapies Limited as an independent contractor. Having incorporated her business in July 2017, Ms Tully sought to update the terms of engagement then in place with her team of self-employed, part-time therapists. The Complainant did not agree to sign a new contract for services with Forever Therapies Limited and, in September 2017, she made a referral to the SCOPE section of the Department of Employment Affairs and Social Protection seeking a determination of her employment status. On 29 May 2018, SCOPE issued a determination that the Complainant’s working arrangements with the Respondent and its predecessors had been consistent with a contract of service. That determination was confirmed by a Social Welfare Appeals Officer on 24 April 2019. The Respondent was notified in September 2017 that the Complainant had made a referral to SCOPE. A meeting took place on 17 October 2017 at which the Respondent’s representatives offered to engage the Complainant on a contract of service or a contract for services. The Complainant did not elect between either as she intended to await the outcome of her referral to SCOPE. In December 2018, the Complainant served a form ES1 on the Respondent. The Complainant was not offered work by the Respondent after 13 December 2017. PRELIMINARY ISSUE: The Complainant referred her complaints under the Act to the Workplace Relations Commission on 30 September 2019. The Complainant did not perform any services on behalf of the Complainant after 13 December 2017. The relevant annual leave year ended on 31 March 2018. Her complaints were, therefore, referred well outside the six-month limitation period. In her complaint form to the WRC, the Complainant stated that, “Given that prior to the decision from the SWAO I could not initiate proceedings for this complaint, I have taken the date of the ruling, 30/04/19, as the starting point for the time limit in taking this action”. The Complainant – as stated previously in this Determination – received a determination from SCOPE on 29 May 2018 to the effect that her employment relationship with the Respondent, for the purpose of social welfare matters, was consistent with a contract of service. She was clearly within time at that stage to refer a complaint under the Act to the Workplace Relations Commission. There is no legal basis for the Complainant’s presumption that the limitation period commenced from the date the Social Welfare Appeals Officer issued his/her decision on the appeal of the initial SCOPE determination. DECISION: The Court finds that the complaint under the Act was referred well outside the statutory time frame for doing so. The Complainant’s appeal is, therefore, unsuccessful and the Decision of the Adjudication Officer is upheld. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Shane Lyons, Court Secretary. |