Complainant

Respondent

Parties

Lucy  Higham

 Auxilion Ireland Limited

Representatives

Self-Represented

Ms. Niamh McGowan BL, instructed by Maguire Muldoon Solicitors  

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00065122-001

31/07/2024

The Complainant commenced her engagement with the Respondent in February 2020. The Complainant was engaged as a Project Manager with the Respondent at a per diem rate of €520 per day. While the status of the Complainant’s engagement with the Respondent is in dispute, and represents the subject matter of this decision, it is common case that the engagement came to an end on 15th July 2024.

On 31st July 2024, the Complainant submitted the present complaint with the Commission. Herein, she alleged that the Respondent had unfairly dismissed her. In particular, the Complainant submitted that the Respondent simply informed her of her dismissal by way of email without engaging in any form of procedure or permitting any right of response. By responding submission, the Respondent stated that Complainant was not and never had been, an employee of the Respondent.

A hearing in relation to this matter was convened for, and finalised on, 24th March 2025. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

Both parties issued extensive submissions in advance of the hearing, said submissions were expanded upon and contested in the course of the hearing. As no material conflict of evidence arose regarding the relevant factual matrix, no witness evidence was called by either party.

In addition to the preliminary issue as to the Complainant’s employment status, the Respondent submitted that the Complainant had impleaded the trading name of the Respondent on the complaint form and listed various companies within the Respondent’s group of companies thereafter. In circumstances whereby the body that issued the contract to the Complainant was identified in the course of the proceedings, this legal entity is listed as the Respondent to the complaint. In this regard, the name of the Respondent has been amended from “Auxilion” to “Auxilion Ireland Limited”.

In response to the preliminary issue raised by the Respondent, the Complainant submitted that she was an employee of the Respondent and that she had locus standi to bring the present complaint.

In this regard, the Complainant submitted that she was recruited by the Respondent and entered a series of contracts with the same. At all times, the Complainant was paid by the Respondent and the Respondent was her primary point of contact for employment related issues. Throughout her engagement the Complainant provided IT services, particularly related to project management, for a client of the Respondent. In this respect, the Complainant stated that this was her full-time occupation and that she did not have any other source of income. In evidence, the Complainant stated that she spent the entirety of her time providing services on behalf of the Respondent. In this respect, the Complainant submitted that she had full access to the relevant section of the client’s network and that she was fully integrated into the same by way of a remote portal. The Complainant stated that she would submit her work product to the client of the Respondent and receive further instruction from this body.

In addition to the foregoing, the Complainant submitted that she was ultimately dismissed by the Respondent. In this respect, the Complainant submitted that the Respondent clearly controlled her employment, in that the ultimate decision regarding termination lay with that organisation.

Having regard to the foregoing points, the Complainant submitted that she was engaged as an employee by the Respondent. As a consequence of the same, she submitted that she had standing to bring the present complaint.

At the outset, the Respondent submitted that the Complainant was not, and never had been their employee. By submission, the Respondent set out their role within a procurement framework, whereby they tender for large scale service contracts. Under this framework, the Respondent contracted certain IT professionals to a third-party client. Under this process complainant was engaged, as an independent contractor, commencing in February 2020.

In this respect, the Complainant did not contract with the Respondent directly. Rather, the relevant contracts for service existed between a limited company owned and operated by the Complainant and the Respondent. Eight such contracts were agreed between the parties, spanning approximately six months each, with the last contract set to expire on 30th November 2024. The Respondent submitted that these contracts clearly and unambiguously state there was no employment relationship in existence between the parties, defining the engagement as a contract between the independent entity and the Respondent.

Regarding billing, the Complainant submitted their hours through an online portal, which were then compiled and invoiced to the client after approval. The Complainant's hours were invoiced monthly through her independent company, which included VAT, and payments were made directly into her company's account. The Respondent emphasised that the Complainant was not on their payroll, did not receive wages, and that her company was responsible for its own tax obligations. The nature and details of her daily work were controlled by the client, and she was not subject to any employee performance management protocols.

Having regard to the foregoing, and in consideration of the recent authorities of the superior courts, the Respondent submitted that no contract of employment existed between them and the Complainant. As a consequence of the same, they submitted that the Complainant does not have standing to being the present complaint, and that the same must be dismissed on a preliminary basis.

Regarding the present case, the Respondent has submitted that the Complainant was not engaged under a contract of employment, and as a consequence, she did not enjoy standing to being the present complaint. In this respect, the submitted that the Complainant had no actual engagement of any description with the Respondent. Rather a limited company controlled by the Complainant, a legal entity in its own right, contracted with the Respondent to provide certain IT relates service, not to the Respondent itself, but to a client of the Respondent. The Respondent also submitted that they did not exhibit any control over the Complainant in the manner by which she performed her duties. By response, the Complainant stated that she was recruited by the Respondent, that she was paid by the Respondent and that the Respondent exhibited control in dismissing her from her purported employment. The Complainant further submitted that she spent all of her time working for the Respondent’s client and that she was integrated into their systems.

In this regard, Section One of the Act defines “employee” in the following terms,

“…an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment…”

Likewise, “employer” is defined in that section as,

“…the person by whom the employee is (or, in a case where the employment has ceased, was) employed under a contract of employment.”

Section One goes on to defines “contract of employment” as,

“…a contract of service or of apprenticeship, whether it is express or implied and (if it is express) whether it is oral or in writing”

The subject of what constitutes a “contract of employment” for these purposes has been the focus of numerous superior court matters in recent times. Most recently, the Supreme Court issued an authoritative determination in the matter of Revenue Commissioners v. Karshan [2023] IESC 24. Here, following a consideration of the considerable body of law in this particular area, the Supreme Court posed the following five questions that must be examined prior to reaching a determination in this regard:

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.

In consideration of the above, it can be seen that the initial three criteria act as qualifiers for the overall test. In the event that the Complainant cannot satisfy each of these these three criteria, she will not be deemed to be an employee without a consideration of the final two points.

Regarding the first criterion in outlined above, the Respondent stated that the  present engagement was between a limited company owned and operated by the Complainant and the Respondent itself. Consequently, they submitted that the Complainant cannot satisfy the first criterion outlined, as the contract involved an exchange of work between her limited company and the Respondent and its client, rather than between the Complainant and the Respondent directly.

Although the use of a corporate entity as an intermediary structure between the Complainant and the Respondent is an important factor in assessing whether an employment contract exists, it is not the sole determinant. Section 8.2.2 of the recently published Code of Practice on Determining Employment Status states that,

“The key point in relation to cases where intermediary structures are used is that the employment relationship will be subject to the same factors/legal tests…when determining whether the worker is self-employed or an employee. In looking at all the facts and circumstances of the case, it is possible that a decision-maker or adjudicator may determine that the end-user is, in fact, the employer for PRSI purposes. Each case is determined on its own facts.”

In the matter of Paul Lingard -v- Randridge International Ltd, ADJ-00053934, the Adjudication Officer found that a contract of employment existed notwithstanding the existence of such an intermediary structure. Likewise, an employment relationship was found to exist in such circumstances in the matter of PR Manager -v- Hotel Resort, ADJ-00046181.

Having regard to the factual matrix presented by the parties, it is apparent that the critical factor is the third criterion list above, regarding the level of control exercised by the Respondent over the Complainant in the exercise of her duties. In this respect, it is common case that the Respondent did not control or seek to control the Complainant's day-to-day activities. Instead, the assignment of the work, the manner by which the work was to be completed and the review of the work product were undertaken and dictated exclusively by the Respondent's client. In this regard, it is apparent that the Complainant had minimal interaction with the Respondent regarding her actual day-to-day activities. While the Complainant submitted that she was integrated into the Respondent, this integration related to the Respondent’s client and not to the Respondent itself.

In this regard, the framework agreed by the parties establishes that the Complainant was engaged, by means of an intermediary structure, with the Respondent to provide services to the Respondent's client. This arrangement ensured that the Complainant did not provide services directly to the Respondent. Given this context, it is evident that the Respondent did not exercise control over the Complainant in a manner that could render the agreement one that is capable of being an employment agreement. As such, I find that the Complainant was not engaged under a contract of employment with the Respondent and, therefore, does not have standing to bring the current complaint. In these circumstances, I find that the Complainant was not unfairly dismissed by the Respondent.

I find that the Complainant was not unfairly dismissed by the Respondent.

Karshan, Intermediary Structure