The Design and Crafts Council Ireland has been ordered to give a jewellery instructor a permanent contract after the Workplace Relations Commission said the council had been "evading their legal responsibilities" under employment law.
It is only the second time this year the WRC has applied a remedy other than compensation after upholding an unfair dismissal claim.
Kilkenny-based jeweller and goldsmith, Marie Wilgaard-Kelly, had complained under the Unfair Dismissals Act 2001 against the national craft organisation, which is funded by the Department of Enterprise.
The tribunal heard she started working for the council as a trainer on a course in August 2016 after tendering for the position, with a further contract extending it to 2019.
She then won another tender for the role of jewellery and ceramic technician in 2018, the WRC was told.
Ms Wilgaard-Kelly wrote to the Council in April 2021 raising the question of her employment status and received a reply the following month stating that she was an independent contractor.
The council also told her at this point that the programme she was teaching "would not be running after her contract ended" that July but that a tender process would reopen in 2022.
The council maintained its position that she was not an employee after receiving a letter from Ms Wilgaard-Kelly’s solicitor.
However, in December 2021 the Department of Social Protection determined Ms Wilgaard-Kelly’s status should be classed as PRSI A, which the adjudicating officer in the case, Brian Dalton, noted was "a class for those who are employed under a contract of service and who are employees".
Ms Wilgaard-Kelly, who represented herself at a hearing in July, argued that there was a "mutuality of obligation" in her contract with the council.
She said she reported to a manager and was required to carry out a training role in circumstances where the council was obliged to provide her with work.
Her hours were fixed and linked to a "set payment like a salary" and although she had discretion to take up other work, it could only happen "outside the hours and period as set down in the contract", she said.
Solicitor Alastair Purdy, who appeared for the council, argued there was no mutuality of obligation and that Ms Wilgaard-Kelly had entered into a "business contract to provide services" which was "fee-based".
Ms Wilgaard-Kelly "did work for other parties and was free to do so", he said.
"The complainant prior to entering the contract had sought independent legal advice and signed her contract knowing that in substance it was a contractor role and was not a position for employment," Mr Purdy added.
In his decision, adjudicating officer Brian Dalton found the council's position that there was no mutuality of obligation was "not credible" on the basis of the contract between the parties.
He wrote the Crafts Council was "obligated to provide work to the complainant and the complainant is obligated to carry out that work under the control of the respondent".
"In all respects it reflects a technical trainer employment contract," he wrote.
"One must ask if it is a technical training/demonstrator employment role, why the elaborate process of e-tenders and independent contract provisions with recurring contracts over many years? Ultimately the Respondent can only answer that question," he added.
Mr Dalton noted further that Ms Wilgaard-Kelly was forbidden from subcontracting her work without prior agreement from the council’s chief executive; and that any additional work she undertook could not interfere with the delivery of the contract.
He wrote that these clauses were "very similar" to the high level of control exercised by an employer and that the position that the council had a low level of control over the complainant "cannot be maintained".
He also noted that the fact that Ms Wilgaard-Kelly was paid in response to her invoices was "a practice set by the respondent".
"The power balance in any relationship must be considered. In this case the employer insisted on how the relationship must work. The complainant, while highly skilled, works in a market where opportunities … are few and far between. The reality is she had no choice but to accept those terms as set out in the contract and to sign the contracts," Mr Dalton wrote.
"The factual matrix is probative of a contract of service, and I determine that the complainant is an employee," he wrote.
Mr Dalton noted that there had been a pattern of breaks in Ms Wilgaard-Kelly’s service in line with the academic year, up to May 2021, when she was told her contract would not be renewed.
"I have formed an opinion that the successive contracts provided to the complainant were to avoid partly or wholly liability under the Unfair Dismissal Acts 1977 as amended… I find that the council was using successive independent contracts to evade [its] responsibilities under obligations placed on the employer by the Unfair Dismissals Act," Mr Dalton wrote.
He ruled that the council’s conduct was unreasonable and that Ms Wilgaard-Kelly had been unfairly dismissed.
He ordered the employer to re-engage the complainant for a 17-hour working week at an hourly rate of €25.50 with a contract of indefinite duration with a start date of 7 July 2021.
Mr Dalton also ordered that the complainant be provided with a written statement of her terms and conditions of employment within a month of the issue date on the decision, 24 August this year.
It’s only the second time this year the WRC has ordered a remedy other than compensation in an unfair dismissal claim.
A secondary complaint under the Protection of Employees (Part-Time Work) Act was dismissed on the basis that Ms Wilgaard-Kelly had not identified a full-time comparator.