by Jenny Wakely, Senior Associate at AOC Solicitors
In Maurice Morgan v GK Munster Couriers Limited ADJ-00032720, the Workplace Relations Commission (“WRC”) was required to consider the employment status of the Complainant, Mr Morgan. This decision includes a helpful overview of some of the case law and factors relevant to determining whether an individual is an “employee” or an “independent contractor”. There was no attendance by or on behalf of the Respondent at the hearing, but correspondence and submissions had been provided to the WRC on the Respondent’s behalf.
Facts: The Complainant claimed that he commenced employment with the Respondent on 22nd June 2020 and that his employment was terminated by the Respondent at the start of February 2021. The Complainant worked as a courier/van driver for the Respondent. The Respondent claimed, in written submissions, that the Complainant was not an employee but a self-employed contractor between the relevant dates.
There was a conflict of evidence between the parties on a number of relevant points, including whether or not the Complainant supplied invoices to the Respondent, and what the nature of the arrangement was in accordance with which the Complainant’s wife carried out work for a period of time. The parties agreed on certain other matters, such as that the Respondent hired a van for the Complainant to use and provided insurance and that he was paid a daily rate of €130 for each day worked.
Decision: The Adjudicator, Ewa Sobanska, noted at the outset of her decision, that:
“The determination of an individual’s employment status in the context of ascertaining whether or not that individual has standing to pursue claims under employment legislation is a mixed question of fact and law.”
She referred to the decision in McAuliffe v Minister for Social Welfare  ELR 239 where Barr J stated that there was no “hard and fast” rule regarding what constitutes a contract of employment and that a court or tribunal must consider the “totality” of the relationship between the parties on any particular set of facts. She considered the evidence provided by the parties under the relevant legal tests.
Mutuality of obligation
The Adjudicator noted that mutuality of obligation is often referred to as the “irreducible minimum” required in order for a contract of employment to be found to exist (Nethermere (St Neots) Limited v Gardiner  ICR 612).
The Adjudicator was satisfied that based on the uncontested evidence of the Complainant, there was mutuality of obligation between the parties, “the Respondent undertook to provide the Complainant with work and … the Complainant undertook to personally perform that work in consideration of remuneration.”
Personal service and substitution
The Adjudicator referred to the Complainant’s evidence that he provided personal service throughout the period during which he worked for the Respondent and noted that this evidence was uncontested by the Respondent. The Adjudicator was satisfied that, although the Complainant’s wife had provided some delivery services during a busy period, she was not a substitute for the Complainant. The Adjudicator agreed with the Complainant’s position that she had been taken on by the Respondent as an additional driver.
The Adjudicator referred to established case law in respect of the “control test” noting that it was based on the traditional view of a master-servant relationship and is now afforded less significance than was previously the case. She was satisfied that the Respondent in this case “exercised a significant degree of control over work done and the manner by which work was to be done by the Complainant”, referring to the following important factors:
- The terms of engagement and daily rate of pay were set by the Respondent.
- The Respondent dictated the routes in respect of which the Complainant was obliged to deliver on.
- The Respondent provided the Complainant with a vehicle, insurance, and fuel card.
- The Respondent scheduled the days on which the Complainant was required to work.
- The Respondent required the Complainant to provide a medical certificate if he was absent due to illness.
- The Complainant was required to obtain permission if he wanted to take time off from work.
- The Complainant was subordinate to the Respondent and reported to Mr Roche.
The Adjudicator referred to established case law in this area and concluded that on the basis of the evidence before her, the Complainant was an integral part of the business.
“The core activity of the Respondent’s business relates to delivery of parcels via courier service, the very activity which the Complainant was engaged to perform. I accept that, considering the hours the Complainant worked for the Respondent every day, he was not in a position to take on additional work over and above that [sic]he performed for the Respondent.”
The Adjudicator referred to the Code of Practice on Determining Employment Status (complied by the Department of Social Protection, the Office of the Revenue Commissioners and the Workplace Relations Commission, July 2021). This sets out the entrepreneurial test in the following terms:
“Whether and to what extent the person who has been engaged to carry out the work is doing so as a person in business on their own account, and has the ability to profit from their own efficiency/entrepreneurial skill or, conversely, runs the risk of suffering a financial loss.”
The Adjudicator noted that the Complainant worked exclusively for the Respondent and was paid a set rate of €130 per day worked. She was satisfied that he was not in a position to profit from his own efficiency or entrepreneurial skills and that he did not take on a financial risk.
In light of the above, the Adjudicator found that the Complainant was an employee of the Respondent and she proceeded to consider his complaints in relation to annual leave, public holidays, and rest breaks on that basis.
Takeaway for Employers: The distinction between an employee and an independent contractor is crucial, primarily because most employment law protections apply to individuals employed under contracts of service and not to independent contractors carrying out work under contracts for services. Employers should obtain legal advice on the nature of any working arrangement or proposed working arrangement which is either understood as being or intended to be pursuant to a contract for services. There are a number of legal tests employed by the courts and by the WRC and the Labour Court and each case depends on the particular factual matrix.
About the author
Jenny Wakely qualified as a solicitor in 2012 and holds a first class LL.B and LL.M. She specialises in Employment Law and joined the AOC Team as a Senior Associate in September 2021.
Jenny has worked with a broad range of employers in Ireland and abroad as well as with major insurers and private individuals. Her work encompasses all aspects of non-contentious and contentious employment law and related litigation. She advises clients in respect of all matters relating to the employment relationship, from recruitment to termination, and everything in between. Jenny also regularly drafts and reviews contracts of employment and employee handbooks and policies. She also advises employers on data protection matters and assists employers in responding to complex and wide-ranging data subject access requests.
Jenny is a member of the Employment Law Association of Ireland. She frequently writes on employment law related matters.