Complainant

Respondent

Parties

Paul Harrison

Your Event Entertainments Ltd

Representatives

Terry Gorry & Co. Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00066317-001

27/09/2024

The Complainant stated that he started employment as a Band Leader with the Respondent on 27 February 2024. He stated that his employment was terminated on 27 August 2024 and that he did not receive his notice entitlements under the Act. The Respondent disputed that the Complainant was an employee.

The Complainant stated that he was the lead musician in the Sax on Fire Band. He stated that he was never told that he was not an employee of the Respondent but stated that they dictated his assignments, schedules, working hours, and tasks, including suggestions to undertake certain unpaid work such as rehearsals, studio time to superimpose his vocals over karaoke backing tracks, and appearances in promotional videos.

It was also stated that he was reassigned to perform on two occasions with the Agency's sister band "Sax and The City" to fill scheduling gaps, demonstrating the Agency’s control over his role. Furthermore, the Respondent provided key equipment for performances, including audio systems, which the Complainant transported and operated as part of his role.

The Complainant stated that he was paid for his performance and DJ services, with the clients paying him directly at the Respondent’s instruction. The Respondent retained over 60% of the overall fee. This retention did not cover payments to other musicians, as they never received this money.

The Respondent stated that the Complainant was not an employee for the following reasons

1.       He was entitled to play with other bands, such as the Pearls band, which is at odds with the suggestion that there was an employment relationship with the Respondent

2.       Correspondence from the Complainant, such as an email from him on 4 September 2024, clearly show that he identified himself as a contractor.

3.       The Complainant provided invoices to the Respondent in respect of work he fulfilled.

4.       The Complainant was able to opt in/opt out of work using the Respondent’s Band Pencil management platform.

5.       The Complainant terminated the relationship between the parties in an email sent to the Respondent on 27 August at 11 24 am.

Preliminary Point:

I should highlight firstly that the Complainant must be engaged under a contract of employment to come within the jurisdiction of the Act. Specifically, for the purposes of the Act, a contract of employment is “a contract of service…, whether it is express or implied and (if it is express) whether it is oral or in writing”.

In Karshan (Midlands) Ltd t/a Domino’s Pizza [2023] IESC 24, the notion of a ‘test’ to determine employment status was rejected with Murray J concluding that every case turns on its particular facts and that it is necessary to assess all relevant features of the relationship, identifying those features that are and are not consistent with an employment contract and “determining based upon the sum of those parts the correct characterisation”. Murray J outlined that the framework in Ready Mixed Concrete (South East) Ltd. v. Minister for Pensions and National Insurance [1968] 2 QB 497 and developed in Market Investigations v. Minister of Social Security [1969] 2 QB 173 (decisions later endorsed and applied in the Denny judgment) remain a “reliable structure for the identification of a contract of employment”, concluding that the question of whether a contract is one of service or for services should be resolved by reference to the following five questions:

1.       Does the contract involve the exchange of wage or other remuneration for work?

2.       If so, is the agreement one pursuant to which the worker is agreeing to provide their own services, and not those of a third party, to the employer?

3.       If so, does the employer exercise sufficient control over the putative employee to render the agreement one that is capable of being an employment agreement?

4.       If these three requirements are met, the decision maker must then determine whether the terms of the contract between employer and worker interpreted in the light of the admissible factual matrix and having regard to the working arrangements between the parties as disclosed by the evidence, are consistent with a contract of employment, or with some other form of contract having regard, in particular, to whether the arrangements point to the putative employee working for themselves or for the putative employer.

5.       Finally, it should be determined whether there is anything in the particular legislative regime under consideration that requires the court to adjust or supplement any of the foregoing.

The first three questions are a filter, and if any of the three questions are answered in the negative there can be no contract of service. If all three questions are answered positively, the decision maker must then proceed to look at all the facts to ascertain the true nature of the relationship.

When considering the instant complaint, and in seeking to answer the questions set out above, I am satisfied when examining the first question that a binding contractual agreement existed which involved the exchange of remuneration for work.

When examining the second question, I am satisfied that the Complainant provided his own services to the Respondent and not those of a third party.

When examining the third question, I note in the first instance that the Complainant was involved with a different band, namely the Pearls. I further note, crucially, that the Worker could accept or reject work using the Respondent’s Band Pencil platform. Considering the foregoing, I find that the Respondent did not exercise sufficient control over the Complainant to render the agreement one that is capable of being an employment agreement and I must therefore answer the third question set out by Murray J above in the negative.

Given that one of the three questions has been answered in the negative, it is not necessary to consider the matter any further because there can be no contract of service under the Act.

As I have found that there can be no contract of service under the Act, I do not have jurisdiction in respect of this complaint.

I do not have jurisdiction in respect of this complaint for the reasons set out above.