Some workers have been inquiring about their right to bring an action for unfair dismissal. Those workers who have some connection with the functions of Government seem to be particularly concerned about their rights under the act.
Section 51 of the Employment Rights Act, 2012 provides: “This act does not bind the Crown but applies to statutory corporations.”
The effect of the above provision is that Crown employees or public servants will be unable to invoke the provisions of the act. However, the employees of statutory corporations can avail themselves of the provisions.
As I have pointed out in the past, the act applies to employees. There is a definition of employee in Section 2 that reads in part: “‘Employee’ means an individual who has entered into or works under, or, where the employment has ended, worked under, a contract of employment.”
A contract of employment is defined as “a contract of service or apprenticeship, whether expressed or implied, and if expressed, whether oral or in writing”.
The act gives some guidance on what factors should be considered in determining whether a contract of employment exists. Those factors are set out in the First Schedule of the act that provides as follows:
“In determining whether a contract of employment exists, consideration shall be given to whether:
(a) there is an obligation on the part of the employee to give personal and exclusive service;
(b) the work is done according to the instructions of the employer, and the manner in which the work is carried out is subject to the control and direction of the employer;
(c) the work has continuity, and such continuity creates for the employee an economic dependence upon the employer, without there being any financial risk to the employee;
(d) the work is carried out within fixed hours or at a workplace or workplaces specified or agreed by the employer;
(e) the work involves the integration of the employee in the organization of the business, including his subjection to its policies;
(f) the employee is subject to the procedures of the business for addressing grievances and disciplinary matters;
(g) the employee is in receipt of periodic remuneration payable on a stipulated basis, for example, at hourly, weekly or monthly intervals, and all such payments are subject to statutory deductions;
(h) the employee is entitled to holidays with pay; and
(i) the employee makes no, or only nominal, investment in tools and equipment.”
The act then makes it clear that the above factors are not exhaustive and that they are all elements in a balancing exercise to determine the nature of the contract.
It is ultimately for the tribunal to determine what weight to give to each factor, and to determine whether a worker is an employee or an independent contractor using the above tests and presumably, the traditional tests used by the courts in determining this issue.
In next week’s article I shall begin to discuss the tests used by the courts to decide whether a worker is an employee or independent contractor.
• Cecil McCarthy is a Queen’s Counsel.
