THE HIGH COURT
Contract of service vs. contract for services – Challenge to decision of social welfare appeals officer – Standard of review – Audi alterem partem.
The applicant challenged a decision of a social welfare appeals officer that the notice party, Ms. Lorna Barnes, was an employee of the applicant under the Social Welfare Acts at Class A from 1 January 2004 to 31 July 2011.
The challenge was based on three grounds. First, that a Rights Commissioner had already determined the employment status of the notice party in 2012 and the respondent was bound by that decision. Second, that the appeals officer had erred in erred in law and in a mixed question of fact and law in reaching his determination and, thirdly, that the appeals officer had breached the principle of audi alterem partem in that certain material was not adverted to during the course of the decision making process.
The applicant had employed the notice party as a ceramic specialist pursuant to a series of fixed term contracts, each of which purported to be “a contract for services and not a contract of employment”. In 2011, the applicant embarked on an overhaul of its procurement procedures across a range of service areas, including conservation services. The notice party was required to tender for her current position. As part of the tender process the notice party identified herself as a part-time sole trader. The notice party was successful in the tender process and was retained in her post until July 2013.
In 2012 the notice party and a number of colleagues brought claims against the applicant pursuant to the Organisation of Working Time Act 1997 for entitlements to annual leave and public holidays. The Rights Commissioner determined that the notice party and her colleagues were not employees and therefore did not qualify for entitlements under the act.
In December 2012 the notice party applied to the SCOPE Section of the respondent’s department for a determination of her employment status. In May 2013 the SCOPE deciding officer determined, pursuant to s. 300 of the Social Welfare Consolidation Act, 2005 that the notice party was employed as a member of staff with the applicant. The applicant appealed and in December 2013 the appeals officer determined that the notice party was employed under a contract of service. The Chief Appeals Officer confirmed this decision.
The applicant argued that it had not been afforded the opportunity to address the contents of an email from its Head of Administration in 2005 on which the SCOPE officers heavily relied in reaching their decisions. Murphy J. stated that the question of employment status depends on the totality of the facts in every particular case. She held that the appeals officer appeared to have ‘cherry-picked’ certain facts and ignored others. She ruled that the applicant should have been afforded an opportunity to address the content of the 2005 email in accordance with the principle of audi alterem partem and that the failure to allow it to do so was a fundamental failure on the part of the officer. The original decision was quashed and the matter remitted to the appeals officer for redetermination.