SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015
ASSOCIATED NEWSPAPERS IRELAND LIMITED T/A DMG MEDIA IRELAND
(REPRESENTED BY DILLON EUSTACE SOLICITORS)
- AND -
(REPRESENTED BY DENIS MCSWEENEY SOLICITORS)
1.Appeal Of Adjudication Officer Decision No(S) ADJ-00027251, CA-00034880-001
This is an appeal by Mr Joseph Dunne (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00027251/ CA-00034880-001, dated 3 February 2021) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer decided that the Complainant was engaged by Associated Newspaper Ireland T/A DMG Media Ireland (‘the Respondent’) under a contract for services and did not, therefore, qualify to bring the within claim under the 1977 Act. The Complainant’s Notice of Appeal was received by the Court on 8 March 2021. The Court heard the appeal over two days: on 14 June 2022 in Sligo and 22 September 2022 in Dublin. It received sworn evidence from the Complainant and from Mr Cormac Cahill on behalf of the Respondent.
The Factual Matrix
The Complainant is an accomplished press photographer. He was worked for the Respondent from 2003 until 2019. It is common case that the Parties entered into - what was ostensibly, at least – a contract for services dated 28 January 2006 on foot of which the Complainant provided photography services to the Respondent for a fixed daily rate of remuneration. In 2009, the Parties changed their method of engagement and the Complainant established a limited liability company – Joe Dunne Photography Limited – which company contracted directly with the Respondent to provide similar photography services as the Complainant had previously personally provided to it, from 1 January 2010. It is common case that the Complainant was paid by the Respondent on foot of monthly invoices he submitted. Those invoices were in his own name up until January 2010 and thereafter in the name of his limited liability company.
The Respondent terminated its relationship with the Complainant’s company on 27 September 2019. The Respondent paid the company in lieu of three months’ notice on foot of an invoice for the relevant amount from Joe Dunne Photography Limited. The Complainant’s company remains extant and continues to trade. The Complainant referred his originating complaint under the Act to the Workplace Relations Commission on 27 February 2020.
The Complainant’s Submission
The Complainant submits that the terms of his engagement were at all times – pre- and post-2010 – dictated by the Respondent. He further submits that, contrary to appearances, he was in reality engaged at all material times by the Respondent under a contract of service as he was required to provide his professional services personally to the Respondent. He was not permitted to substitute somebody else and worked according to a roster determined by the Respondent. He did not generally supply photographs, he says, to other publishers, apart from doing an occasional ‘nixer’ and was not in a position to work for other employers because of the amount of time he spent on assignments for the Respondent – full time Mondays to Fridays and every second Sunday.
The Complainant submits that he was not engaged as a free-lance photographer by the Respondent as he did not sell his photographs to it but was paid a fixed daily amount plus expenses and various allowances (e.g. when working away from home) at pre-agreed rates. He was at all times responsible for his own tax affairs. If travelling abroad on behalf of the Respondent, his flights and accommodation were pre-booked by the Respondent and paid for by it. He submits he was directed by the Respondent to attend at relevant locations where current news stories were unfolding. He was supplied with a WiFi dongle by the Respondent and the latter also paid his mobile phone bills. He supplied his own camera equipment but other ancillary equipment was supplied by the Respondent, including a drone for aerial photography.
The Respondent’s Submissions
The Respondent submits that it entered into a contractual relationship with Joe Dunne Photography Limited following the incorporation of that company on 27 November 2009 and that that relationship persisted up until its termination by the Respondent – within the terms of the underlying commercial agreement – on 27 September 2019. The Respondent’s submission is that it, therefore had no direct relationship with the Complainant after 1 January 2010 as its commercial agreement with the company he incorporated provided for the supply by it of consultancy services to the Respondent. On foot of that consultancy agreement, the Respondent submits that it received photography services from Joe Dunne Photography Limited for an agreed daily rate of €250.00 plus VAT at 23% for which it was invoiced by Joe Dunne Photography Limited on a monthly basis.
The Respondent further submits that:
The Complainant’s Evidence
The Complainant gave a detailed account of his employment with the Respondent as a press photographer. This, he said, had commenced in or around October 2003 at which time he worked for Ireland on Sunday. From 2006 onwards, he was assigned to the Irish Daily Mail. With effect from 2010 he worked 5 days per week and every third Sunday for the Respondent. His evidence was that the Respondent had a ‘house style’ and he was required to produce photographs that accorded strictly with it. For example, he was required where possible to obtain full-length and well-lit photos depicting ‘attractive’ people.
The Complainant said his work consisted of taking pictures and sending them back to the Respondent’s picture desk. He was supplied with a Wi-Fi dongle by the Respondent to facilitate this. He was told each day by the picture desk where to go in order to obtain the photographs the Respondent needed to accompany the news stories it was covering. He regularly accompanied journalists to cover newsworthy events both around the country and abroad. He often had to stay at a given location for a number of days, he said, until a particular photo requested by the picture editor was taken. Occasionally, the newspaper sent more than one photographer on the same assignment in order to get the best possible pictures. According to the Complainant, the Respondent’s newspaper presented his work in the same manner in which it presented the work of a journalist employed by it: i.e. it attributed his photographs to him personally (‘Joe Dunne’) or to both him and the Respondent (‘Joe Dunne/Irish Daily Mail’) but never to ‘Joe Dunne Photography Limited’.
He said he generally worked from 10.00 am to 6.00 pm but was frequently required to work outside those hours at the Respondent’s request. His working days were rostered by the Picture Editor, Mr Cormac Cahill who occasionally asked him to cover days that other photographers had been rostered for but were unable to cover. The Complainant’s evidence was that he was required to seek advance permission from Mr Cahill to take holidays and other time off.
The Complainant told the Court that the Respondent had paid for him to attend several training courses: a video training course in October 2014; a two-day drone training course in March 2015; and a further three-day course in October 2016.
According to the Complainant, he was called to a meeting in 2009 with the-then Managing Director, Mr Paul Drury and informed that the payment arrangements in place up until then – whereby he submitted monthly invoices in his own name – could not continue and he would be required to set up a limited company through which he would invoice the Respondent for his work on foot of a Consultancy Agreement. He was also told that the same arrangement would apply to each of the other press photographers working for the Respondent at the time. The Complainant said he felt pressurised into setting up his company – Joe Dunne Photography Limited – but did so, nevertheless. The company has never employed anybody but himself. Following the commencement of the Consultancy Agreement, his daily rate of pay went from €250.00 to €260.00. He was paid this daily rate whether or not he had taken photographs on the day.
Evidence of Mr Cormac Cahill
The witness described his role as Pictures Editor with the Respondent from September 2011 until September 2019. He said his job was to ensure that the newspaper had a supply of photographs to accompany news stories and that to do so he used a number of contracted photographers as well as freelancers and agencies, as appropriate. The witness’s evidence was that he understood the Complainant was employed by Joe Dunne Photography Limited and had never been directly employed by the Respondent. He also said he understood in a general way that Joe Dunne Photography Limited was contracted to provide photography services to the Respondent and was one of a number of consultancies engaged by the Respondent in this way.
The witness outlined his normal working day. He said he normally liaised with the news editor of the day at approximately 9.00 am each morning to get a list of current stories from which he created a list of photo stories. He then made the necessary arrangements to ensure that each of the stories on his list were covered by a contracted photographer, a freelancer or an agency. He outlined the different contractual arrangements in place between the Respondent and each of the foregoing. He said the fee paid to Joe Dunne Photography Limited was €260.00 per day for an eight-hour shift (10.00 am to 6.00 pm). Additional hours over and above that attracted a fee of €130.00 (later reduced to €110.00). He pointed out that his own salary in 2015 was €55,000.00 per annum whereas the statement of losses submitted by the Complainant was premised on total earnings of €65,094.00 in 2015 plus expenses of €11,000.00. He said that the expenses claims submitted by Joe Dunne Photography Limited related to parking, meals, accommodation, mobile phone fees and broadband used to supply pictures.
According to the witness, he needed to be supplied with pictures from Monday to Friday and on Sundays. He said the Complainant worked Monday to Friday and on Sundays in rotation. Other contracted photographers worked fewer days. The witness said he developed a roster system to facilitate the Complainant’s wish to work Sundays. He told the Court that if the Complainant was unable to work on any a particular day, the Complainant gave him advance notice and there was never a problem facilitating this. Either the witness himself secured one of the other contractors to cover that day or the Complainant advised him that one of the other contractors would be available to do so. Similar arrangements applied, he said, when the Complainant required holidays and he was not limited to any number of days off/holidays. He said he had no difficulty amending the rosters to suit the needs of individual contracted photographers and never turned down a request for time off. In the witness’s evidence, the issue of the contracted photographers sub-contracting never arose for his consideration and the Complainant had never made a request to him to substitute a third party in his place. The Complainant, he said, submitted his invoices on a monthly basis in which he listed the dates on which he had worked. He submitted a separate invoice for expenses.
According to the witness, there was no restriction imposed on the Complainant working elsewhere on days he was not rostered to work for the Respondent. He said he was aware that a number of the other contractors regularly did work, including for example public relations work, for other clients.
The witness was asked in direct evidence about the lengthy period that the Complainant spent working in Mauritius on the Respondent’s behalf. He denied the Complainant’s assertion that a ‘dim view’ would have been taken by the Respondent had he refused to travel there. He said it made perfect sense to offer him the assignment as his wife is from Mauritius and they travelled there together. He said the Complainant was paid an extra €130.00 per day while in Mauritius. This contrasted with the arrangements that applied to a staff reporter who was paid only her normal salary but nevertheless worked seven days per week and received time-off-in-lieu on her return to Ireland.
The witness was next asked about a period of paid time off he granted to the Complainant following the birth of the latter’s second child. The witness said that this was something he initiated by promising to keep the Complainant’s diary for the week as free as possible. He denied that it could be construed in any way as a concession that the Complainant was entitled to paid paternity leave.
The witness told the Court that the Complainant enjoyed only restricted access to the Respondent’s offices as he did not have a swipe card. He accepted that the Complainant is a talented fashion photographer and that he occasionally availed himself of the Respondent’s photography studio to do fashion shoots.
The witness said that the newspaper required a particular style of photograph and the contracted photographers were all familiar with the ‘house style’ but were never instructed on how to achieve it. He then told the Court that he had assumed that the Complainant and other contractors had their own public liability insurance but he never verified this. He said he accepts that the Complainant attended social events organised by the Respondent but said he did not see this as conferring the status of an employee on the Complainant as a whole range of non-employees – including models, columnists and cleaning staff - were similarly invited to those events.
Under cross-examination, the witness said that although he had been aware generally of the Consultancy Agreement between Joe Dunne Photography Limited and the Respondent, he wasn’t familiar with the detail and only saw it for the first time after the commencement of the within appeal. He then proceeded to explain how and when he used freelance photographers and agencies. He said that on one occasion he had to place a freelancer on the roster for a week or two to cover contractors’ leave. The freelancer was paid by the Respondent.
According to the witness he generally allocated stories to individual contractors but equally, he said, equally they sometimes took it upon themselves to get certain photographs relevant to the current news cycle.
When asked by the Complainant’s Counsel about the provision of the drone, the witness said that the Editor had made a decision that the newspaper should move with the times and make use of aerial photography, as appropriate. A decision was also made at the time that the Complainant would be the best person to use a drone for this purpose as it was known that he had an interest in this area. The Complainant was, therefore, sent on a course paid for by the Respondent. However, it proved impossible to obtain insurance on the drone and the project was abandoned.
The Parties’ detailed legal submissions make reference to a number of the leading decided cases in this jurisdiction - all of which are very familiar to this Court - in which the superior courts have considered the issue of employment status.
Counsel for the Complainant requested the Court to have particular regard to Edwards J’s consideration, inBarry & Ors v Minister for Agriculture IEHC 216, of the importance of establishing, in the first instance, whether there exists/existed a mutuality of obligation between the parties to a contract, when determining whether the contract is one of service or otherwise,. The learned judge states as follows in paragraph 13 of that judgment:
Counsel also referred to what she suggested were factors in the relationship between the Parties indicative of a level of control being exercised by the Respondent over the Complainant: the fact that he was obliged to produce photographs to a particular ‘house style’, and that he was directed where and when to go to certain locations to obtain photographs related to particular stories of interested to the Respondent. Counsel placed much emphasis on the Complainant’s evidence that if he had to work later than expected on a story and remain at a location to which he had been sent, he would telephone Mr Cahill to seek his permission to do so. Likewise, the presence of control, she submitted, can be inferred from the fact that the Complainant similarly sought permission to take leave and days off in advance of doing so.
Finally, Counsel submitted that both the work performed by the Complainant and he himself were integral to the Respondent’s business: the Respondent had no directly employed photographer on the staff of theDaily Mail, the Complainant was required to produce work that complied with the house style and he was treated as a member of staff in so far as he regularly invited to attend staff Christmas parties and other social events.
Counsel for the Respondent submitted that there was little material disagreement between the Parties in relation to true the facts in this case. He reminded the Court that the Complainant has described himself in evidence as having been self-employed up until 2010 and that essentially the same arrangements continued to apply thereafter other than in relation to the treatment of his tax affairs and the application of VAT to the invoices he caused to be issued to the Respondent following the incorporation of Joe Dunne Photography Limited. Counsel submitted that although the Complainant seeks to rely on the findings of the Court of Appeal inKarshan, the facts of that case are distinguishable from those of the within appeal due in no small measure to the incorporation by the Complainant of a limited liability company which he used as a vehicle to provide services to the Respondent in return for which the company invoiced the Respondent and paid the Complainant a salary, subject to PAYE.
Counsel for the Respondent submits that it has not been established on the facts that the Respondent exercised sufficient control over the Complainant’s work to satisfy the so-called control test. He further submits that there was no mutuality of obligation between the Complainant and the Respondent in the period following the incorporation of Joe Dunne Photography Limited. In Counsel’s submission, it is the Complainant’s company and the Respondent who were parties to the Consultancy Agreement under which the Complainant provided professional services to the Respondent from 1 January 2010 onwards by virtue of being named in Schedule 3 of that Consultancy Agreement as the Individual appointed by the Consultant to so provide the services it had contracted to provide on a consultancy basis to the Respondent. The Complainant, notwithstanding this, Counsel stresses, was not a party to the Consultancy Agreement. The Agreement, he observes, stipulated that the services thereunder were to be provided “as and when requested by the Photographic Editor” and did not specify the precise manner in which the work in question was to be carried out or the hours during which it was to be performed. Furthermore, according to Counsel, the Consultancy Agreement made no guarantee in relation to the provision of work to Joe Dunne Photography Limited or to the Individual appointed by it on foot of the Agreement. While he accepted that the Agreement specified a daily rate of payment for services performed thereunder, it did not guarantee that any minimum number of days’ work would be provided to the company or the Individual. He referred the Court to paragraph 4(ii) of the Consultancy Agreement which provides: “The Consultant shall ensure that the Individual shall provide the Services wherever may be necessary for due performance of them” and submits that the import of this and similar provisions in the Agreement place an obligation on the Consultant (i.e. Joe Dunne Photography Limited) without there being any complementary obligation on the Respondent. In the absence of any mutuality of obligation between the Complainant and the Respondent, Counsel urges the Court to find that there was no contract of service in being between the Parties.
Discussion and Decision
The determination of an individual’s employment status in the context of ascertaining whether or not that individual has standing to pursue claims under employment legislation is a mixed question of fact and law.
The undisputed evidence before the Court is that the Complainant accepted that his relationship with the Respondent between 2003 and late 2009/early 2010 was one of self-employment whereby he performed photographic services on the Respondent’s behalf and invoiced the Respondent for those services on a monthly basis at an agreed daily rate. He told the Court that he didn’t raise any issues with this arrangement because he didn’t want to lose ‘his job’. There is , likewise, no dispute in relation to the fact that the Complainant agreed in late 2009, at the Respondent’s behest, to incorporate a limited liability company which company would, with effect, from 1 January 2010, act as a vehicle through which the Complainant would continue to deliver photographic services to the Respondent in return for which the Respondent would make a slightly enhanced daily payment, plus VAT, to the company on foot of invoices for the relevant amounts issued by the company to the Respondent. The Respondent was a stranger to the terms of the employment relationship that operated as between the Complainant and his limited liability company subsequent to its incorporation.
It was the Complainant’s evidence that he (along with his fellow photographers) was compelled by the Respondent to establish a limited liability company in 2009 for the purposes outlined above. Regardless, the fact is he agreed to do so and did in fact do so. Willingly or otherwise, the Complainant proceed to use his limited liability company to provide photography services to the Respondent in return for payment for a period of almost nine years until the Respondent encountered trading difficulties that necessitated making a number of its employees redundant and also resulted in its decision to terminate its commercial Consultancy Contract with Joe Dunne Photography Limited in accordance with the terms of that Agreement i.e. by paying the equivalent of three months’ professional fees in lieu of notice on foot of an invoice for same issued by the Complainant’s company.
Having considered the sworn evidence before it, the comprehensive legal submissions ably made by Counsel on both sides and the extensive case law cited in those submissions, the Court finds that the interposition of a limited liability company between the Complainant and the Respondent in itself undermines the Complainant’s case that he was an employee of the Respondent. It follows that the Court finds that the Complainant has not discharged the burden of establishing his standing to pursue the within claim under the Act and the Court, therefore, does not have jurisdiction to consider his substantive appeal under the Act.
The Court so determines.
Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.