Contract

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Johno

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My wife is a computer trainer and works on a self employed basis for a ltd company for the past 10 years. She has worked soley for this company for 10 years but in a self employed capicity at the request of the company.
We had a baby last year and my wife has returned to work as normal but is not perpared to do the 14/15 hours unpaid overtime every week as before.
My wife has felt that the MD of the company attitude has changed greatly since whe returned to work and was told last week by an employee of the company (who is also a good friend of my wife) that the MD was pis**d off that my wife would not do the (unpaid) over time and that her loyality had moved from him to her child!

The MD rang my wife on Friday and told her that he had no more work for her and thanks for the past 10 years and the best of luck in her future career!!

Can he get away with this?

Any advise welcome.
 
I guess it depends on the precise contractual nature of her working relationship with the company. Did she operate as a sole trader or under a limited company of her own? What sort of contract did she/her company have with the other company? What did this specify in terms of termination of the contract/employment? How was she paid (e.g. through normal salary payroll or on an invoiced basis)? In some cases I believe that ostensibly independent contractors will be, by default, considered full time employees in terms of statutory entitlements etc. Perhaps the DETE Employment Rights Section or the LRC can offer some more authoritative advice?
 
Thanks Clubman,

In answer to your questions -
She operated as a Ltd company for the first 5 years and then as a sole trader.
She never had a written contract with the Ltd company as they "dont Issue" contracts.
She invoiced the company monthly for payment.

Thanks
 
Thanks for the information. I am certainly no expert in this area but I would be dubious about her having any come back in terms of statutory rights/protections normally granted to normal employees or in terms of the implied contract termination. I'm not sure what you/she might envisage as a realistic way forward here. At this stage getting back to work with the company doesn't look like a realistic proposal given the relationship between the parties. If thats's true then what else do you/she expect to gain by prusuing the matter? Compensation or something else? Has she consulted with a solicitor on the matter?
 
Hi Clubman,
Compensation is not an issue. I just wanted to know if the MD could get away with treating someone with 10 years service like that.
As it happens my wife got a phone call from him this pm to arrange a meeting for tomorrow so we will see what happens.

Thanks
 
But you must have some idea of what might be a suitable alternative to him "getting away with" doing this? Reinstatement? Compensation? Censure of some sort? Let us know what transpires anyway. Whatever happens it doesn't sound like an ideal working relationship/situation so maybe it's time to start looking for alternatives in the short/medium term?
 
Hi johno,

Did your wife work a full working week nine to five, monday to friday? Was she working as directed by a superior? Apart from the maternity leave has she worked continuously and exclusively for the company?

Im not an expert but I suggest your wife gets some advice from a solicitor with a knowledge of employment law.

At the very least follow Clubman's advice and contact the DETE and let them know your circumstances.

ajapale
 
Sorry ,I dont have the link & hence the long reply(from comhairle website).

Why is it important to decide if a person is an employee or not?
Asking if someone is an employee may sound like a silly question. Usually it will be very obvious whether or not a person is an employee, however sometimes the answer may be less clear. For example, a business anxious to avoid employment legislation, PAYE and PRSI, may insist that all the people working for the firm are self-employed rather than employees. Deciding whether a person is an employee or not has important implications for the person concerned. Firstly, the majority of the employment protection provided by law only applies to employees. As a result if you are not an employee you will lose out on legal protection covering, for example, annual leave entitlements, unfair dismissal and redundancy. Secondly, your PAYE and PRSI situation will be very different depending on whether you are an employee or not. For example, a self-employed PRSI contributor is not covered for the social welfare Disability Benefit payment if s/he is unable to work due to illness.

Who decides?
Even though a firm may insist that a person is not an employee (or the parties agree that this is the case), that is not the end of the matter. The Revenue Commissioners, or the Department of Social, Community, and Family Affairs or perhaps a court or tribunal will decide the matter by looking at what is the reality of the situation. So it could be that in law you are an employee, even though you have agreed with another person that you will work for them as a self-employed person.

How is the decision made?
Over the years the courts have looked at this question many times, and have said that in making the decision, the following questions need to be asked:
Is the person (the possible employee) under the control of another (the possible employer) who directs how, when and where the work is to be carried out?
Is the person supplied with the materials?
Is the person supplied with the equipment to do the work?
Is the person receiving an agreed weekly or monthly payment?
Is the person paid sick or holiday pay?
Is the payment subject to PAYE and PRSI deductions?
Does the person have to do the work and can it be given to someone else to do it for him/her?

If the answer to some or all of these questions is "yes" then it may be an employee/employer situation. It is only "maybe" because it depends on all the circumstances of each case. Thankfully, as stated at the beginning of this section, in most cases it is clear whether a person is or is not an employee and so the problem does not arise. However if this is a problem for you, then it is best to get more detailed legal advice or guidance from the Revenue Commissioners or the Department of Social, Community and Family Affairs.
 
I think the point is that just because the MD would prefer if your wife (and presumably other people) weren't regarded as employees, it doesn't necessarily follow that he has the freedom to think so.

If it can be established that your wife was effectively an employee, then she would be entitled to the protection of employment leagisaltion. IF this was the case, she could pursue a case for unfair dismissal, the redress for which could include re-instatement or financial compensation.

However you would need to contact DETE.
 
That extract posted by Unregistered is very pertinent and comes from [broken link removed].
 
Thanks for the replys

Ajapale, My wife has worked full time 9 to 5 monday to friday exclusively and continuously for this company for 10 years. She was directed and supervised by the MD at all times.She did not recieve holiday or sick pay.

Their is a alot of history with this company and its employees/ sub contractors which have landed them in court a few times, details of which I don't know enough about to go into.

Again many thanks
 
Assuming posting details might not cause problems now or in the future in relation to this issue, how did the meeting go? What is the plan for pursuing this issue? Are you going to follow up on any of the suggestions (e.g. for obtaining advice/information from specific agencies) above?
 
Thanks for all the advise.

Can't go into to much detail but the Ltd co gets its contracts from a goverment Agency. My wife is one of a few registered and quilified trainers the Ltd co has and is registered with the goverment agency. When wife recieved phone call from the md she emailed the Gov agency and advised that she was let go and to unregister her.

To cut a long story short the gov agency whom my wife would be well known and respected by contacted the md to see what was going on, he in turn met with my wife and apoligised, under pressure etc and offered her a 12mth contract . Wife told him their working relationship was damaged beyond repair and left it at that. Since then the Gov agency has been in contact directly with the wife ask her to tender for the same contract!

What goes around comes around!
 
Thanks Johno,

It good to see things have appeared to resolve themselves!

A word of caution though; your post contains some material which might allow your wife to be identified. Given the nature of the relationships this might not be a good idea. I suggest you edit your last post and remove or mask/change some of the details.

Good luck!

ajapale
 
ajapale said:
It good to see things have appeared to resolve themselves!/QUOTE]

Quite unsatisfactorily I would have thought!

By seeking to renew contracts in then way they do, the company is in clear breach of employment law. Perhaps this should be brought to the attention of the Government agency in question. They all have a policy (in theory, at least) of only dealing with bona fide entities.

I also find it hard to believe that a Government agency would keep a register of a private company's contractors. Their interest with any company they engage should be limited to ensuring that it's capable of doing a good job. How the company meets this standard is its own business. It should never have been necessary for your wife to contact the agency as she did (although it may well prove to be beneficial anyway).
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