Case Number: ADJ-00019248. Workplace Relations Commission.
| Docket Number | ADJ-00019248 |
| Hearing Date | 08 May 2019 |
| Date | 01 June 2019 |
| Court | Workplace Relations Commission |
| Parties | A Sales Executive v A garden products supplier. |
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
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The Complainant worked for the Respondent from 28/09/2016 until 26/10/2018. This complaint was received by the Workplace Relations Commission on 15/01/2019. A preliminary issue in relation to the complainant’s employment status took place prior to hearing the complaints listed. |
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BACKGROUND The Complainant has set out the background to his complaint to the WRC by letter dated 17th February 2019. The following additional matters are relevant to the background as set out therein:
The Complainant registered his own company in 2015 to handle claims and risk management and traded for this purpose up until September 2016. When the Complainant commenced his employment with the Respondent in September 2016 he was requested to invoice by Mr McN and he used this company to raise invoices.
The Complainant was not provided with a contract or any written agreement in relation to his role with the Respondent whether when engaged or at any time thereafter.
From the initial engagement it was made clear that the Complainant was joining the Sales Team. By email of 28th September KP announced:
“I would like to announce that xxxxx xxxxxxx just joined our sales team in Ireland …Welcome on board xxxxx from Dublin J” The Complainant received welcome emails from colleagues in response including: “Welcome to the land of xxxxx”.
It was not represented at any stage that the Complainant was a contractor and there was no indication that he was joining the Respondent organisation as anything other than a member of the team. The Complainant was paid on a commission only basis for which he provided an invoice each month, which was discharged each month by the Respondent. However, depending on whether customers had paid, some payments would fall into the next month. A retainer would be paid half way through the month and then deducted from the total commission earned.
The Complainant was fully integrated with the Company. His picture remains on the Respondent’s website. He was required to wear the Respondent’s uniform (company shirt with his name and title and a leather green gilet/waistcoat with Respondent branding, which he is seen wearing on the Internet page, at Trade shows and in the marketing video). At the trade show in October 2018 the Respondent dictated his clothing. The Complainant’s business cards identified him as an employee of the Respondent. He is featured on the website and Facebook page regularly as part of the team, including one post on his birthday where he is referred to “our very own gardening specialist, xxxxxxxxxxxx (the Complainant was named).
Further to the foregoing, the Complainant was represented to customers as being part of the team as evidenced from customer reviews. He was identified as working with the Respondent as a Senior Sales Executive when he requested a character reference from the Managing Director.
The Complainant was provided with all equipment and tools required to do his job by the Respondent. He was provided with a Company car that was covered in artificial grass and a fuel card. He was also covered under the Respondent’s insurance policy to drive all company vehicles and was required to hold and provide a copy of his full driving licence to the Respondent upon commencement. All parking was paid for by the Respondent.
He was also provided with a mobile telephone, an I-Pad, and SIM card. He was fully integrated into the Respondent’s ICT systems including email and CRM system and Visibook account to manage his diary. He was also provided with a payment terminal (SumUp) for accepting deposits. He was provided with a drone for taking aerial shots of gardens.
All samples, brochures and marketing material were provided by the Respondent.
The Complainant did not provide any tools or equipment whatsoever. If as happened on occasion, he was required to purchase any such items, such as for example tape measures, he was fully reimbursed by the Respondent.
When he attended the annual conferences in the UK, flights and accommodation were paid by the Respondent.
The Complainant was required by the Respondent to attend a meeting every Friday morning. It is very apparent from the email minutes of the meetings that the Complainant was part of the “Respondent team”. He received all leads from the Respondent either at these meetings or otherwise through their systems. It is clear that all of his duties / activities were directed and controlled by the Respondent. The Complainant was not provided with a Company Handbook or notified of a grievance procedure or otherwise notified of any way to address disputes within his workplace at any time prior to October 2018.
The Complainant has set out the circumstances surrounding his dismissal, summarised as follows: He was required to work at a Trade Show from 26th October 2018 He received a text message at 9pm on 25th October instructing him to wear a suit and blue tie to the Trade Show. He did not own a blue tie and was not given any notice in order to acquire one. When he arrived without a blue tie, Mr McN became annoyed and unreasonably reprimanded the Complainant.
The Complainant thereafter sought payment for the Trade Show. The Respondent told him that if that was his attitude “he could f*** off”. It is not accepted that this was normal banter in the workplace and the Complainant was deeply offended. The Complainant was not prepared to accept this unreasonable conduct and left the Trade Show handing back his company car keys and some other Company property.
However, following the Trade show, the Complainant sought to engage with Mr McN and “reached out” to him to address the matter. However, Mr McN refused to engage with him and instead asserted that the Complainant was not an employee. It was only after the Complainant’s employment terminated that the Respondent asserted for the first time that he was not an employee.
The Complainant made a request for an insurability decision to SCOPE section of Department of Employment Affairs and Social Protection. The decision issued on 10th April 2019 and found that the Complainant was an employee of the Respondent. Following investigation, the Deciding Officer found that: “Having considered all the available evidence on file in this case, I have concluded that the Complainant was employed under a contract of service and that a normal employer/employee relationship exists in this case”.
LEGAL SUBMISSION
Employment Status
It is alleged by the Respondent that the Complainant was not an employee. In this regard, it is accepted that the Complainant was paid by submitting invoices to the Respondent on a monthly basis and that the Complainant looked after his own Tax and PRSI and it is submitted the Respondent deliberately sought to designate the Complainant as self-employed and that this, in the words of the Bill currently before the Dail was “Bogus Self Employment”.
As there was no written contract whatsoever between the parties, it is submitted that the Adjudication officer must examine the totality of the relationship between the parties. It is submitted that the payment arrangements were not determinative of the Complainant status and that in fact the circumstances overwhelmingly demonstrate that the Complainant was employed on a... |
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