JJ Rhatigan & Co claimed that the conduct of picketing workers was “appalling” and that the company was entitled to injunctions restraining pickets at any of its sites. In seeking injunctions, Counsel for the company contended in the High Court that no bona fide trade dispute existed because JJ Rhatigan & Co was not not the employer of the workers picketing the sites.
- whether employment or self-employment exists,
- whether it is insurable employment, insurable occupational injuries employment (covered for Occupational Injuries Benefits only) or insurable self-employment,
- what class of PRSI is due, and
- in the case of employment, the name of the employer.
For employees, the decisions affect entitlement to social welfare payments, cover under employment protection legislation (including redundancy) and income tax payments. For employers, the decisions affect their duties under social welfare and employment law.
Where a decision results in the PRSI Class changing to a higher rate of PRSI, arrears will be collected by a Social Welfare Inspector from the employer. All 14 workers had been subject to the lowest class 'S' PRSI as self-employed (Contract for Service) whilst working on Rhatigan sites.
THE SCOPE DECISION
This Formal Decision from SCOPE entitled the workers to benefits under PRSI Class A to which they had no entitlement under PRSI Class S including-
- Jobseeker's Benefit
- Illness Benefit
- Health & Safety Benefit
- Invalidity Benefit
- State Pension (Transition)
- Treatment Benefit
- Occupational Injuries Benefit
- Carer's Benefit
'If you are not satisfied with this decision you may appeal in writing to the Chief Appeals Officer, D'Olier House, D'Olier Street, Dublin 2, within 21 days of the date of this letter stating clearly the grounds of your appeal"
As the benefit for employers to reclassify PAYE staff and pay them as self-employed persons is circa 20% of their labour costs, it was a foregone conclusion that JJ Rhatigan & Co. would appeal.
2 weeks ago, the 14 workers arrived at the Social Welfare Appeals Office and immediately sought an adjournment. The men had serious concerns about which, this week, they have written to the Chief Appeals Officer seeking clarification -
'Dear Chief Appeals Officer
I have the following concerns, please address them as soon as possible.
Notice Of Appeal
On the 19th of August 2015, JJ Rhatigan & Co. were informed of the SCOPE decision that I was employed by them under a contract of service (employee).
JJ Rhatigan & Co were advised that they had 21 days to appeal 'stating clearly the grounds of your appeal'. To date, the grounds of Rhatigan's appeal remain a mystery. No point of fact nor point of law has been forthcoming. In the absence of a point of fact and/or a point of law appealing this decision, it is invconceivable that the Social Welfare Appeals Office would agree to an appeal. JJ Rhatigan & Co have not appealed the SCOPE decision within 21 days stating clearly the grounds of their appeal.
As 14 of these letters were sent to JJ Rhatigan & Co., there can be no doubt that JJ Rhatigan & Co. are fully aware of their legal obligation to clearly state their grounds of appeal. Considering JJ Rhatigan & Co's failure to provide clear grounds for appeal, I respectfully request that an appeal be dismissed forthwith.
There appears to be an attempt on the part of the Social Welfare Appeals Office to deal with all 14 decisions and appeals as one case with all to be heard and decided upon in one hearing. I strongly protest this approach, decisions are based on established facts, not assumptions and as such there is no basis for categorisations purely by occupation. Each case must be assessed on its own merits in accordance with the general precedents of Irish law. Operations which seem to be the same may differ in the actual terms and conditions in any given case.
Further to the issue of individual cases, the Appeals Officer voiced an intent to use these cases as 'test cases'. I do not wish to be considered as a 'test case'. Although it is correct to recognise that my case has wideranging implications for the building trade, it is incorrect for the Social Welfare Appeals Office to use it as a test case. Considering that each case must be assessed on its own merit, it is highly questionable that the SWAO has the authority to adjudicate on the employment status of persons who have not been assessed on their own merit by SCOPE or the SWAO. In essence, to use these cases as 'test cases' would be to pass judgement on workers who have not been afforded an opportunity to represent themselves or to have representations made on their behalf. The only matter before the SWAO is an appeal of the specific SCOPE decision that I was found to be an employee of JJ Rhatigan, it is impossible to see how considerations other than this very specific case fall within the legal powers of the Social Welfare Appeals Office.
At the recently adjourned hearing in the SWAO, I was present without legal representation. The SCOPE section did not have legal representation. JJ Rhatigan & Co. were fully legally represented with barristers and solicitors. I was not informed that JJ Rhatigan & Co. would be legally represented.
I am merely a 'Notice Party' to these proceedings. JJ Rhatigan & Co. is the 'Appellant' and the Department of Social Welfare is the 'Respondent'. It is entirely the responsibility of the Department of Social Welfare to defend the SCOPE decision. I was genuinely shocked at the absence of legal representation for SCOPE. A decision with multi-million euro implications, important enough for industry legal representation, wasn't legally defended by the Minister for Social Welfare.
I would be grateful if you would forward to me, at your earliest convenience, any information on how I can claim legal expenses from the SWAO.
From the moment I entered the SWAO on Wednesday last, I felt ambushed. I'd been given no reason for appeal, no fact or law which I could prepare to defend against. I was faced with JJ Rhatigan's formidable legal team and a handful of social welfare employees for whom the entire process already seemed to be a fait accompli. I fought and won my right to be recognised as an employee. The system used to classify thousands of workers in the building trade and beyond as 'contract for service' (self-employed) is exposed as unjustifiable. Dubious test cases in a secret and unaccountable court to once again shoe horn me into dodgy self-employment is not acceptable.
There is an awful lot at stake here for all workers wrongly classified as 'Self Employed' and also for JJ Rhatigan & Co. who are the ninth largest recipient of State expenditure.
Clarifications are awaited from the Chief Appeals Officer.