14 Jul Employee v Contractor ?

In a recent Adjudication Officer’s Decision (ADJ 00005826) the preliminary issue of whether the Complainant was an employee or not was considered in order to determine if his complaints under the Organisation of Working Time Act 1997, Unfair Dismissals Act 1977 and Protection of Employees (Fixed Term Work) Act 2003 could be heard.

The Complainant contended that his service from 23rd March 2015 until 3rd June 2015 as a Data Analyst should be recognised as direct employment despite the fact that he was responsible for his own taxes and had signed an independent contractors agreement. The Adjudicator firstly dealt with this preliminary matter in order to determine if the complaints regarding unpaid holidays, unfair dismissal and less favorable treatment under fixed term legislation could be heard.

The Complainant who was a Croatian national outlined that he had been assigned to work on the Croatian market at an Associate Company of the Respondent but also worked on the Canadian, US, Turkish, Irish and other markets as the need arose. The Complainant was paid €128 per day and worked 40 hours per week. On May 6th 2015 the Complaint was informed by telephone that the Associate Company no longer required a Croatian team and his employment was terminated on 3rd June 2015. The Complainant queried with the HR Department why the team could not continue to service non Croatian markets as they had been doing. He also queried the status of his “employment” contract. The Complainant was subsequently determined to be an employee for social welfare purposes in November 2016 and in submitting his complaint to the WRC outlined that his work was target based and controlled and he had to submit daily reports. The Complainant also said that he worked set hours for a set payment and he had to notify HR if he was unable to work. The Complainant further stated that he he could not subcontract the work and was provided with all necessary tools to do his work.

The Respondent disagreed and said they had a commercial agreement with the Associate Company to provide testing services and the Complainant was very aware that he was an independent contractor and had represented himself to Revenue as such and never raised with them that he had any issue with his employment status until the termination of his employment.

The Adjudicator found that whilst the parties had signed a contract for services agreement in February 2015 that was not a contract of employment, the reality of the employment relationship as it evolved was in sharp variance to what was on paper. The Adjudicator outlined that the Complainant was working a standard week under the direction and control of the Respondent and the Associate Company and highlighted a number of matters in the Contractors Handbook that were very much linked to standard employee arrangements such as the grievance and disciplinary procedures, absence management procedures and an “on call” compensation policy. The Adjudicator found that it was not fatal to the Complainant’s case that he had not raised his employment status prior to his termination and determined that he could be classified as an employee from the outset of his employment and therefore was in a position to have his various claims heard.

The Complainant was subsequently awarded almost €3,000 for annual leave and public holidays due under the Organisation of Working Time Act 1997. The Adjudicator also found that whilst a genuine redundancy situation had existed in respect of work on the Croation markets the Complainant had not been treated fairly by having his employment terminated under his contracting agreement and also by having the dismissal communicated by phone. The Adjudicator found that the dismissal was procedurally unfair and the Complainant had been unfairly dismissed. The Complainant was awarded €5,000.

A claim under Fixed Term Legislation with regard to unfair treatment with employees who were not on fixed term contracts was found to have been lodged outside of the statutory six month time period from date of contravention, and the Adjudicator did not have jurisdiction to hear the claim.