Complainant

Respondent

Parties

Patrick  O'Connor

Pfizer Service Company Ireland Unlimited Company ULC

Representatives

Gerard Kennedy BL instructed by  RJ Kavanagh Solicitors

Owen Keany BL instructed by  A & L Goodbody LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00065297-001

08/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00065297-002

08/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00065297-003

08/08/2024

The issues in contention were a claim for an alleged Unfair Dismissal with associated Payment of Wages Act ,1991 and Organisation of Working Time Act,1997 complaints.

The Complainant was a Manager, Capital Projects and the Respondent was a major multinational Pharmaceutical Company. The engagement began on the 30th November 2007 and ended on the 9th February 2024. The status of the engagement was a matter of contention between the Parties.

The rate of pay was stated by the Complainant to have been €10,000 per month.

1:1        Introduction

The Respondent was represented by Mr Owen Keany BL instructed by A&L Goodbody, LLP. The Complainant by Mr Gerard Kennedy BL instructed by RJ Kavanagh Solicitors.

It was agreed that the opening issue was at the heart of the matter and should be dealt with first before proceeding to consider the main case.

In summary, the argument was that the Complainant had never been an employee “OF Service” but rather a Contractor “FOR” Service who supplied an Engineering/project Contract Service via a privately owned Contracting Company.

It followed that if the “FOR Service” argument held then the WRC had no proper jurisdiction to hear the complaints, such as raised in this case, which were based on a “Of Service” employee /employer relationship.

1:2           Summary of Complainant’s Case.

The Complainant via Mr Kennedy BL argued that by application of the “5 prong test”, especially the first three “tests” set out in the Supreme Court decision Revenue Commissioners v Karshan Midlands Ltd T/A Domino’s Pizza [2023] IESC 24, the relationship with the Respondent was that of a contract OF service i.e. an employee. The first test was the question of Renumeration - the answer being an unequivocal Yes as the Complainant was paid some €60 per hour.

The second Test was whether or not the Complainant was “agreeing to provide their own services and not those of a third party to the employer”. Again, Mr Kennedy argued the answer was an unequivocal Yes.

The third test was that of Control – again it was argued that the Complainant was under the sufficient control of the Respondent to “render the agreement one that is capable of being an employment agreement”. This was deemed to be, again, a Yes by Mr Kennedy.

It follows that having satisfied the three tests the Complainant was an Employee with a Contract OF Service. It was further argued that the provisions of Section 13 of the Unfair Dismissals Act,1993 applied. The Complainant was effectively an Agency Worker employed via series of Employment Agencies, and the Respondent was the “third person” and liable for any redress under the 1977 Unfair Dismissals Act.

A brief extract from Section 13 of the UD Act,1993 is quoted below.

1:3        Summary of Respondent Arguments.

The Respondent via Mr Keany BL pointed to the overall context, what the Supreme Court called the “admissible factual matrix and having regard to the working arrangements between the parties as disclosed by the evidence”.

It was stated that the Complainant had never been employed in any context by the Respondent. The arrangement was via his Company – Cliffland Electrical and Mechanical Services Limited (for convenience referred to as CEMSL). CEMSL had made a commercial arrangement with a series of Agency companies to supply Electrical and Mechanical services.  In the most recent case, the Agency was CPL Solutions Ltd who deployed the Contracting Company to the site of the Respondent.

The Complainant was not an Employee of either the Agency or the Respondent. A detailed exhibition of the relevant clauses of the Commercial Contract between CEMSL and CPL Solutions Limited was given by Mr Keany. Clause 3.6 of the Commercial Contract specifically states that the Contractor (the Complainant) has “No contract with the client” ( the Respondent) and “cannot purport to be an agent or an employee of the Client”.

Clause 5 of the contract states unequivocally

5     Relationship of the Parties

The relationship between the Contractor (the Complainant) and the Company (CPL) is that of independent contractor. The Contract is a contract for services and is not a contract of service. The contractor shall not be an employee of the Company and as such shall be responsible for their own income tax, insurance and other statutory contributions as required under Revenue law to be paid by them and no responsibility shall lie with the Company or its clients in this regard.

CEMSL invoiced CPL and was paid by them. There was no employment relationship with the Client (the Respondent).

This arrangement had been the case, via various Agency Companies, since effectively November 2007.

Regarding the issue of the Agency Worker and Section 13 of the Unfair Dismissals Act 1993 Mr Keany BL argued that this clause had been introduced by the Oireachtas to safeguard “Individual employees” engaged/employed by Employment Agency Companies but deployed to particular client Sites. It was to address a practice of some unscrupulous employers dismissing employees and avoiding any consequences as the Employee was not their Employee but that of the Employment Agency.

In the case in hand the Complainant was not an Employee of either CPL or the Respondent but presumably of CEMSL who had entered into a clear Commercial Contact with CPL to supply services.

Mr Keany drew attention to us of the term “Individual” in the 1993 Act – he argued, relying on the Interpretation Act, that this was clearly a “natural Person” and not a “body corporate” in this case CEMSL. The case of Friends of the Irish Environment CLG v the Legal Aid Board [2023] IECA 19 was cited in support. In this case Murray J of the Appeal Court drew attention to this important distinction.

Extensive case law was cited in support of the Respondent case principally Karim Taib v Bimco LT- Adj-00034890, McGrath v Hoban Technology Holdings Ltd -Adj-00028088, Lipa v Treade Credit Ltd=Adj 00049984, Friends of the Irish Environment v Legal Aid Board [2023] IECA 19, Associated Newspapers Ireland t/a DMG Media Ireland v Dunne RPD228 and a Court of Appeal /High Court decision - Reddy and the Minister for Social Protection v Clements, Redsberry Management Services Ltd and Contracting Plus Consultants Ltd [2024]IEHC 719.

Mr Keany relied on these precedents to support his arguments.

In final summary Mr Keany made the overall point that there was No Employment relationship as required and defined in the Unfair Dismissal Act,1977 in these complaints.  Accordingly the case was outside of the jurisdiction of the WRC and should not proceed.  

1:4       Adjudication Review and conclusions.

The basic Legal Position

The basic legal foundation of this case is the definition of “employee “in Section 1 of the Unfair Dismissals Act,1977.

“employee” means 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;

“employer”, in relation to an employee, means the person by whom the employee is (or, in a case where the employment has ceased, was) employed under a contract of employment and an individual in the service of a local authority for the purposes of the [Local Government Act 2001 (as amended by the Local Government Reform Act 2014), shall be deemed to be employed by the local authority;

In plain English this means that an employee has to have had a Contract OF Service be an “employee” as widely understood as opposed to a contract FOR Service which would, in essence equate to a Contractor/client relationship.

Mr Justice Murray at Para 253 of the Revenue Commissioners v Karshan Midlands Ltd T/A Domino’s Pizza [2023] IESC 24 offered good counsel for examinations of these types of cases. Although referring to the five Tests he stated

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”

Accordingly, the Adjudication has to focus on the “factual matrix” as set out in the evidence both Oral and Written.

The most major pieces of evidence presented by the Respondent were the Contracts between CPL Solutions Ltd and Cliffland Electrical and Mechanical Services Limited – CEMSL of 8th December 2022 and 22 November 2023.

On careful reading by the Adjudication Officer, being informed by the Case Law proffered and the Oral & Written Evidence presented, the inescapable view has to be that this was a Commercial Contract between Commercial entities to supply a service to a Client Company of CPL.

The Contract was a direct successor to similar Contracts dating back to the beginning of the arrangements in 2007.

It was manifestly not a Contract of Employment “Of Service”.

Clause 3.6 and Clause 5, (for convenience quoted above in Section 1:33) expressly rule out this interpretation. The Unfair Dismissals Act,1977, accordingly, cannot apply.

The case law cited by the Respondents (Mr Keany BL), which was open to full cross examination by the Complainant Representative (Mr Kennedy BL), is overwhelmingly supportive of this position.

The argument in regard to Section 13 of the Unfair Dismissal Act ,1993 regarding the Complainant being an “Agency Worker” would require the Complainant to have been “An Individual” – a “Natural person” employed by CPL Solutions Ireland and deployed, almost exclusively, to the Respondent Pharmaceutical Company. This was not a possible interpretation, to any reasonable observer, to the Contract between CEMSL and CPL Solutions. The Complainant was never employed by CPL Solutions Ltd.

1:5         Final Adjudication Summary and Decision CA: 00065297-001 - Unfair Dismissals Act ,1977

Having reviewed the evidence, the considered arguments proffered and giving due weight to the case Law cited, the Adjudication view is that the Complainant has not satisfied the Unfair Dismissal Act,1977, Section 1, definition of an Employee.

Accordingly, the complaint cannot proceed as it is outside of the Jurisdiction of the WRC.

1:6       CA: 00065297-002 – Payment of Wages Act,1991

As the Complainant does not satisfy the definition of an Employee as set out in the Act the complaint cannot proceed.

1:7       CA: 00065297-003 -Organisation of Working Time Act,1997

As the Complainant does not satisfy the definition of an Employee as set out in the Act the complaint cannot proceed.

Definition of Contract - Of or For Service, Unfair Dismissal. Payment of Wages and Organisation of Working Time.