Following on from the SW Committee and PAC Committee hearings into bogus self employment, Martin has lodged a formal complaint with the Clerk of the Dail which has been referred to the Privileges Committee by the Ceann Comhairle
Dear Clerk of the Dáil,
I make this submission pursuant to Standing Order 71. I am adversely affected by utterances contained in a Dáil reply from Minister Heather Humphreys to Parliamentary Question 353 of 6th July 2021 (PQ ref. no. 36092/21) to Deputy Paul Murphy.
These utterances adversely affect my reputation in respect of dealings and associations with others particularly elected representatives, the media and all and any other stakeholders in the area of employment rights.
These utterances injure my reputation as a respected whistleblower and explicitly contradict evidence I have given to a number of Oireachtas Committees. The undermining of my evidence and my reputation as an expert whistleblower is the intent of these utterances.
1. In her Dáil reply, Minister Humphreys states:
“The Chief Appeals Officer has advised me that the discussion in relation to the use of ‘test cases’ before the Joint Committee on Employment Affairs and Social Protection on 5th December 2019 specifically related to a number of test cases considered in the 1990s”
The true factual position is that the discussion in relation to the use of test cases before the Joint Committee on Employment Affairs and Social Protection on the 5th December 2019 did not only relate to a number of test cases from the 1990s. The discussion also related to the approach of using test cases by the Social Welfare Appeals Office in 2016. It was accepted and conceded by the Chief Appeals Officer in the Committee on the 5th of December that the approach of using test cases was used specifically in relation to 16 construction workers in 2016.
This is further confirmed in a number of communications between the construction workers and the Social Welfare Appeals Office from the 2016 cases, where the construction workers wrote to vehemently oppose the approach of test cases being used by the Social Welfare Appeals Office.
Extract from those communications –
“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”
2. In her Dáil reply, Minister Humphreys states:
“These cases involving workers in a particular sector”
The true factual position is that these cases involved employers, not workers in a particular sector. That these cases involved employers and not workers, is confirmed in a Parliamentary Reply from former Social Welfare Minister Doherty to Deputy Paul Murphy on the 18th of December 2019 (Question no. 449 Ref. 53652/19) in which she states:
“A number of cases involving a number of employers in a particular sector”
Minister Humphrey’s Parliamentary Reply contains an almost verbatim copy of the reply given by Minister Doherty in 2019 yet this particular point, that it was employers involved and not workers, has been altered in Minister Humphrey’s reply. It was employers in the courier industry who sought to have all those working as couriers labelled as self-employed. Workers were not represented nor involved in the lobbying and subsequent decisions which determined that they were all classified as self-employed.
That workers were not at all involved in the process of test cases, is confirmed in a reply from the Chairperson of the Revenue Commissioners to a query from the Chairperson of the Public Accounts Committee as to why all couriers were labelled as self-employed. This letter is dated the 9th of August 2000 and it states:
“As regard taxation, the issue of couriers and particularly motorcycle couriers was the subject of protracted discussions between Revenue and representatives of the courier industry. I enclose copies of our letters of 7 March 1997 and 3 April 1997 to Messrs. K Ryan & Company which represented courier firms at the discussions. The letters outline the agreement reached for tax purposes. The majority, if not all, of the courier firms identified following these discussions opted for the voluntary PAYE system of taxation for couriers engaged by them for the reasons outlined in the letters. For the purposes of insurability under Social Welfare law, a motorcycle courier was found to be self-employed by a Department of Social, Community and Family Affairs Appeals Tribunal some years ago. This decision was not challenged further through the High Court on a point of law and consequently would stand for social insurance purposes”
That workers were not at all involved in the process to label them all as self-employed by group/class is further confirmed in a letter dated 1999 from Mr. Chris Hudson, Organising Officer with the Communications Workers Union to a Mr. Hughes who wrote to Mr. Hudson on behalf of the Minister for Labour, Trade and Consumer Affairs, Mr. Tom Kitt. The CWU represented approximately 10% of couriers working in Dublin at that time. In his letter, Mr. Hudson stated:
“Dear Mr. Hughes,
Please could you convey to the Minister for Labour, Trade and Consumer Affairs, Mr. Tom Kitt, my disappointment that he cannot meet my request for a meeting to discuss the issue of motorbike couriers. I am well aware of the Organisation of Working Time Act 1997 and also the definition of employees. What I had hoped to inform the Minister of was that many people, in particular Motorbike Couriers, are against their will being classified as self-employed. However, in many cases they are paid what can only be described as a weekly wage. Whilst Revenue and Social Welfare have for the reasons of tax purposes and social welfare payment classified Motorbike Couriers as self-employed, they do not see this as prejudicing any future determination on the nature of employment of couriers”
3. In her Dáil reply, Minister Humphreys States:
“were selected as so-called ‘test cases’”
The true factual position is that these cases are not ‘so-called’ test cases. They are undeniably test cases. What the Minister is doing in this reply directly contradicts the evidence I gave to committees, there is no question but that the Social Welfare Appeals Office and the Department of Social Welfare use test cases, there is nothing ‘so-called’ about them. That they are test cases was first confirmed in 2000 by the Secretary General of the Department of Social Welfare to the Public Accounts Committee Chairperson where he wrote –
“The employment status of couriers has been under review for some time. Some couriers consider themselves self-employed while others regard themselves as employees. This has implications for PRSI purposes as there are different statutory provisions for employees and self-employed persons. Similar differences exist in relation to employment law and Health and Safety legislation. In order to resolve the matter, a number of representative ‘Test Cases’ were selected in 1993/94 for detailed investigation and formal insurability decision under Social Welfare Legislation. This process resulted in a decision by an Appeals Officer of the Social Welfare Appeals Office on the 12th of June 1995 who decided that a courier was self-employed if he
A) Provided his own vehicle and equipment
B) Was responsible for all expenses including tax, maintenance, insurance etc and
C) Payment was made on the basis of rate per job plus mileage allowance
The Appeals Officer’s decision established the criteria in relation to the employment status of couriers that has, since then, been generally accepted throughout the industry and also by the Office of The Revenue Commissioners for income tax purposes”
(2nd October 2000)
That the Social Welfare Appeals Office uses test cases is also confirmed by the approach of using test cases employed by the Social Welfare Appeals Office in 2016 with 16 construction workers.
That the Department of Social Welfare uses test cases was also confirmed in 2016 by the then Social Welfare Minister Leo Varadkar on the 7th of December 2016 in a Parliamentary Reply to Deputy Eugene Murphy (Question 134) in which Minister Varadkar states:
“A number of test cases in relation to the Electricity Supply Board (ESB) Contract Meter Readers were investigated by Scope in recent years”
That the Social Welfare Appeals Office uses test cases was confirmed in writing to me by the Social Welfare Appeals Office on the 9th of January 2019 in which the SWAO states:
“On occasion over the years an approach of having ‘test cases’ has been taken or considered by the Social Welfare Appeals Office”
That the Department of Social Welfare and the SWAO uses test cases to make insurability of employment decisions outside of existing legislation on groups and classes of workers (test cases) was confirmed by former Minister Doherty in an Irish Times article on the 25th of May 2019 in which it states:
“The Minister is also looking at changing legislation to permit deciding officers to make determinations on the employment status of groups or classes of workers who are engaged and operate on identical terms and conditions. At present both employers and workers have to agree to such class decisions”
The issue of Test Cases is an extremely important one. There is no legislative provision which allows the use of test cases. This is confirmed by former Minister Doherty in the Irish Times and also by the Secretary General of the SW Department to the Public Accounts Committee in 2019. Despite admitting to using test cases on multiple occasions, in writing, the Minister is now attempting to deny that test cases were actually test cases. It is worth noting that workers in the courier industry have been classified as self-employed en mass since the 1995 test case and this precedent setting yet unlawful test case is still used today by the Department to classify all couriers as self-employed. This particular point goes to the heart of how Minister Humphreys is undermining my reputation and the evidence I have given to Oireachtas Committees in regard to test cases.
This fact, that the Department and the Social Welfare Appeals Office use test cases, and that they have taken the approach of test cases since at least 1993 (Refer to SecGen letter of 2000 to PAC Chairperson) was vehemently denied by the Chief Appeals Officer in the Oireachtas Social Welfare Committee in December 2019. I subsequently made a complaint to SIPO that the CAO had misled the Committee in denying the use and approach of using, test cases. SIPO ruled that the CAO’s denial of test cases was ‘erroneous’ but that the Minister had clarified the erroneous statement. However, Minister Humphries reference to test cases as ‘so-called test cases’ completely fails to clarify the CAO’s erroneous statement re. test cases and, in fact, once again denies the use of test cases.
4. In her Dáil reply, Minister Humphreys States:
“These cases, involving workers in a particular sector, were selected as so-called ‘Test Cases’ not to determine the employment status of all workers in that sector”
The true factual position is that these cases, involving employers in a particular sector, were selected as test cases explicitly to determine the employment status of all workers in that sector. This undeniable fact was confirmed in writing by the Secretary General of the Department of Social Welfare to the Chairperson of the Public Accounts Committee in 2000 where he stated –
“The employment status of couriers has been under review for some time. Some couriers consider themselves self-employed while others regard themselves as employees. This has implications for PRSI purposes as there are different statutory provisions for employees and self-employed persons. Similar differences exist in relation to employment law and Health and Safety legislation. In order to resolve the matter, a number of representative ‘Test Cases’ were selected in 1993/94 for detailed investigation and formal insurability decision under Social Welfare Legislation”
The true factual position as outlined to the Public Accounts Committee by the Secretary General could not be clearer, not only was one test case in 1995 used to determine the employment status of all workers in the courier industry by the Dept. SW and the SWAO, workers are still determined by the Dept. and the SWAO to be self-employed based on this single test case 26 years later. This, despite numerous higher Court rulings and precedents, clearly indicating that group/class determinations are unlawful.
More recently, in the Public Accounts Committee, the Revenue Commissioners confirmed in writing that all those working as couriers are classified as self-employed since 1995. This blanket classification of workers as self-employed, thousands of workers over 26 years, none of whom have ever been informed that they are determined as self-employed by Revenue, based on a single SWAO test case in 1995, is now subject to a demand from the PAC for a fully independent investigation.
5. In her Dáil reply, Minister Humphreys States:
“These cases, involving workers in a particular sector, were selected as so-called ‘Test Cases’ not to determine the employment status of all workers in that sector but rather to identify criteria that could be used by Deciding Officers and Appeals Officers for the purpose of assessing each case on an individual basis and to improve the quality and consistency of decision making in relation to the determination of whether an individual was employed or self-employed”
The true factual position is that what the Minister describes as ‘Criteria’ are, in fact, ‘Precedents’. These precedents, which are unknown in legislation and have not been handed down by the Higher Courts, were not used for the purpose of assessing each case on an individual basis, they were and are, in fact, used to establish the employment status of all couriers ad infinitum thus disposing of the necessity to have each case assessed on an individual basis. There is no legal basis for categorizations purely by occupation.
These ‘criteria’, which were created by the Social Welfare Appeals Office over 26 years ago are not, nor have they ever been used by Deciding Officers. This was confirmed in an email dated the 11th of April 2019 from the Scope Section of the Department of Social Welfare to a worker I was representing in an appeal. In this email, the Scope Section Deciding Officer states:
“Please note, I am not aware of any secret test case nor are any of my colleagues in the Scope Section. This was news to me when Martin explained to me your position at the Appeals Office the morning of your hearing”
That Deciding Officers of the Scope Section were never informed of the ‘Criteria’ described by the Minister was also confirmed to me verbally in 2000 by Deciding Officer Fintan Farrelly who explained to me that legislation and case law explicitly states that each case must be assessed on its own merits and that the use of test cases by the SWAO is de facto unlawful and that the Scope Section cannot use ‘Test Cases’ of any kind.
This glaringly untrue utterance from the Minister in her Dáil reply illustrates perfectly how the Scope Section is acting in accordance with legislation and case law and yet Scope Section decisions are overturned by the SWAO using their own precedents, created outside of the law, which are unknown to the Scope Section and workers seeking insurability of employment determinations who likewise have never been informed that they are already classified as self-employed by the SWAO using test cases without any individual assessment of their case. The importance for the worker here is that if the SWAO upholds the Scope decision, it is the state which must defend it in the higher courts if the employer challenges it but if the SWAO overturns the Scope Section decision, it is the worker who must pay to challenge it further.
This particular fact, that the SWAO uses unlawful, precedent setting test cases, to overturn valid Scope Section decisions thus placing the burden of defending the Scope Section decision in the Higher Courts on the individual worker, was originally put forward and accepted by the Employment Status Group in 2000. A report on that group, from the Communications Workers Union, in 2000, confirms in writing, the State’s position of deliberately forcing individual workers to the High Court to have their employment status correctly determined regardless of the evidence the worker presents to the Scope Section or the SWAO. It states:
“The View of IBEC, Finance & Revenue was that the ‘Status Quo’ (The use of unlawful test cases to make group and class decisions) should remain. The Status Quo is where a worker has a disagreement over his/her employment status they can take a case to the High Court”
This statement made at the Employment Status Group, confirms that the SWAO exists only to protect unlawful test cases and that no worker will ever have their case heard on its own merits if it challenges an already existing ‘test case’. In fact, the SWAO will always, and has always, overturned any Scope Section decision which challenges the status quo of unlawful test cases. The entire purpose of test cases is deny workers the right to have their case heard on its own merits.
Having the SWAO use ‘criteria’ unknown to the Scope Section does not improve the quality and consistency of decision making in relation to the determination of whether an individual is employed or self-employed, it achieves exactly the opposite. It creates glaring inconsistency in quality and consistency of decision making particularly between Deciding Officers of the Scope Section and Appeals Officers of the Social Welfare Appeals Office.
6. In her Dáil reply, Minister Humphreys States:
“The Chief Appeals Officer has advised me that the test cases were not used to determine a particular outcome on a ‘group basis’ that would be applied to all cases from that employment sector, as seems to have been inferred by some observers”
I am the person Minister Humphreys refers to as an ‘Observer’. I am the only person who appeared at an Oireachtas Committee who gave evidence about the use of test cases. I am not an ‘Observer’, I am a whistleblower, I am an employee of a courier company who was fired for seeking a Scope Section determination on my employment status. I did not ‘infer’ that test cases were used to determine a particular outcome on a group basis that was applied to all cases in the courier sector, I supplied irrefutable evidence to two Oireachtas Committees in the form of the letter from the Secretary General from 2000 clearing stating that a single test case in 1995 was, and is, used to determine self-employed employment status for all couriers, past, present and future on a group basis, and also the email to me from the SWAO in January 2019, confirming the use of and the approach of using test cases.
The Revenue Commissioners did not reveal to the Oireachtas SW Committee that they have been classifying all couriers as self-employed for 3 decades, but the Revenue Commissioners did reveal this fact to the Public Accounts Committee which resulted in a call from the PAC for a fully independent inquiry into The Revenue Commissioners labelling of all couriers as self-employed. Neither did the Department of Social Welfare, nor the Scope Section, nor did the Social Welfare Appeals Office, all of whom also appeared before the Oireachtas SW Committee. In fact, the Chief Appeals Officer vehemently denied the use of test cases, a denial which was later ruled ‘erroneous’ by SIPO but which Minister Humphreys is repeating here again in her Dáil reply. This statement by the Minister is a direct attack on me, a direct undermining of the fully documented, irrefutable evidence I gave to two Oireachtas Committees. It also reveals that the Minister is less than honest in clarifying the ‘erroneous statements’ made by the Chief Appeals Officer in the Oireachtas Social Welfare Committee.
I cannot express strongly enough the injury to my reputation from this dishonesty from the Minister. I am not an elected representative, I am a private citizen, who has, at great emotional, physical and financial cost, earned the trust of politicians, journalists and the general public on the issue of Bogus Self Employment. I appeared at Oireachtas Committees and told the truth, the whole truth, and nothing but the truth. For the Minister to so casually rubbish my reputation in her Dáil reply, with information she knows to be erroneous, is deeply hurtful and has caused me great anguish.
7. In her Dáil reply, Minister Humphreys States:
“the cases informed identification of criteria that could be applied to each individual case in that sector”
The true factual position is that what the Minister describes as ‘Criteria’ are, in fact, ‘Precedents’ which is confirmed in writing by the Revenue Commissioners. These precedents, which are unknown in legislation and have not been handed down by the Higher Courts, were not used for the purpose of assessing each case on an individual basis, they were and are, in fact, used to establish the employment status of all couriers ad infinitum thus disposing of the necessity to have each case assessed on an individual basis.
There is no legal basis for categorizations purely by occupation. There is no legal basis for criteria which are sector specific as the Minister has stated these criteria are. Every worker has the right to have their case assessed on its own merits using the exact same Oireachtas Legislation and Case Law. These unique, uniquely unlawful criteria, are, as the Minister admits, used only for couriers and are an unlawful extra obstacle which couriers must overcome to in order for their employment status to be determined. No other worker in any other industry is subjected to these unlawful ‘criteria’ before the Dept. SW and the Social Welfare Appeals Office consent to apply the actual case law and legislation to their employment situation.
The 3 ‘Criteria’ identified by the Secretary General in 2000 are –
A) Provided his own vehicle and equipment
B) Was responsible for all expenses including tax, maintenance, insurance etc and
C) Payment was made on the basis of rate per job plus mileage allowance
The only ‘conditions’ which should apply to insurability of employment (employed or self-employed) decisions and appeals of those decisions, are those legislated for in the Oireachtas and on the legal principles handed down from the Courts. Neither the SWAO nor the Department of Social Welfare have the authority to create unique criteria for one set of employers. The creation of these criteria goes far beyond the legal powers of the SWAO and the Department of Social Welfare. None of the ‘Criteria’ above have been legislated for nor are they legal principles handed down from the courts. Insurability of Employment legislation and case law specifically precludes the Dept. SW and the SWAO from creating unique ‘Criteria’ which can only be applied to one group of workers and not all workers. In essence, the use of specific, unique criteria for employers in the Courier industry, bestows an unfair advantage on Courier industry employers which cannot be used by other employers in other industries who must abide exclusively by the legislation created in the Oireachtas and the case law handed down by the courts.
That these ‘criteria’ are unique to the courier industry is confirmed by the Revenue Commissioners who wrote to Courier employers in 1997 and stated:
“The arrangements governing couriers should not be taken as a precedent for other cases you may have with the Revenue Commissioners”
In her Dáil reply, the Minister is declaring that decades of legislation and scores of court rulings on employment status have been distilled down to 3 simple tick box criteria which are applied only to couriers. This is not just ignoring the authority of the Oireachtas and the authority of the Judiciary in this matter, the acceptance of the use of these 3 ‘criteria’ by the Minister to label a group/class of worker as self-employed, exposes that the Minister is acting IN DEFIANCE of the Higher Courts and the Oireachtas.
In 2000, the Social Welfare Minister sought legal advice on the ‘criteria’ –
‘Provided his own vehicle and equipment’
‘Was responsible for all expenses including tax, maintenance, insurance etc’
The Minister was told, in no uncertain terms, that ownership of a vehicle was not an indicator of self-employment as per the Denny case. The Minister chose and still chooses to ignore the Denny case and legal advice from the State Solicitors Office delivered in writing by Mark Connaughton SC to the Social Welfare Appeals Office as follows –
“Applying the law to the facts of the instant case, it is contended that the Appeals Officer is bound to hold that the claimant (A Motorbike Courier) is employed under a contract of service (employee). Insofar as there are any distinguishing facts, they appear only to apply to the provision of a motorcycle by the claimant and it is respectfully suggested that this cannot of itself justify a conclusion that the claimant is in business on his own account within the meaning of the authorities cited (The Denny Case). In the present case, the claimant is required to perform the work personally and does not as a matter of practice work for anyone else”
On the criteria:
‘Payment was made on the basis of rate per job plus mileage allowance’
This ‘criteria’ was ruled upon by a 3 person tribunal in the Employment Appeals Tribunal Chaired by Ms. M Faherty SC as follows –
“While the case is being made that the claimant (courier/delivery worker) could earn as much or as little as he liked, the reality of the case was that the claimant worked a full day almost every day at a rate set by the respondent company. In this the claimant was no different to a piece work employee”
Being paid by the piece ie. by delivery, by brick laid, by potato picked, is not and never was a ‘criteria’ which indicates self-employment status.
The ‘criteria’ referred to by the Minister are not indicators of ‘self-employment’. To subject workers in the courier industry to these ‘critera’ and not the case law handed down by the courts and the legislation created by the Oireachtas has denied all couriers, for many decades, the right to have their individual cases determined according to case law and Oireachtas legislation.
8. In her Dáil reply, Minister Humphreys States:
“Decision makers (Both Deciding Officers and Appeals Officers) could then apply these criteria to all cases that come before them”
The true factual position is that Deciding Officers are completely unaware of these unique ‘Criteria’ and do not apply these ‘criteria’ to cases that come before them. That Deciding Officers are completely unaware of these ‘criteria’ originating from the 1995 test case was confirmed in writing by a Deciding Officer of the Scope Section in an email dated the 11th of April 2019, which states:
“Please note, I am not aware of any secret test case nor are any of my colleagues in the Scope Section. This was news to me when Martin explained to me your position at the Appeals Office the morning of your hearing”
If Deciding Officers in the Scope Section of the Department of Social Welfare did actually know about and apply the uniquely unlawful criteria arising from the 1995 test case, then there would be uniformity of bad decision making coming from both the Scope Section and the SWAO. However, Deciding Officers do not apply these criteria which means that valid, legitimate Scope Section determinations are made in accordance with Case Law and Oireachtas legislation which are then overturned by the SWAO using these unlawful and legally unsustainable ‘criteria’. This has happened on numerous occasions which the Minister is fully and undeniably aware of.
It is particularly worth noting, that it was only after this written communication from a Scope Section Deciding Officer, that the Department of Social Welfare and the Social Welfare Appeals Office decided not to use the term ‘test cases’ any more. From at least 1993 until April 2019, the Department, the Social Welfare Appeals Office and Social Welfare Ministers were quite happy to use the term ‘test cases’. It was only when the prospect of having to explain the unlawful use of test cases at an Oireachtas Committee arose, that the Dept, the SWAO and the Minister issued an edict that the term ‘test cases’ was to be substituted with the term ‘sample cases’. This particular piece of what can only be described as ‘corruption’, then allowed the CAO of the SWAO appear before an Oireachtas Committee and vehemently deny the use of test cases knowing full well that the Dept. and the SWAO have used test cases and the approach of test cases for 3 decades. This was confirmed in the Oireachtas SW Committee by Assistant Secretary, Mr. Tim Duggan.
9. In her Dáil reply, Minister Humphreys States:
“as assessed by reference to these criteria, an individual decision would be made in each case”
The true factual position is, that by referencing these ‘criteria’ BEFORE applying legislation and case law handed down by the courts, the SWAO is excluding couriers from having an individual decision made in accordance with the circumstances of their own individual case. Not only does it deny couriers the same rights as all other workers to have their cases heard on its own individual circumstances, couriers are not even informed by either the Scope Section or the Social Welfare Appeals Office that a previous ‘Test Case’ has already determined them to be self-employed. The Minister is stretching credulity in her Dáil reply in maintaining that the SWAO will make a determination on an individual courier which then exposes that the SWAO and the Dept. have been acting unlawfully for 3 decades to label all couriers as self-employed. Not only does the individual courier not get a fair hearing on their own individual circumstances, the decision that they will be found to be self-employed by the SWAO and will be forced to the high court to overturn the group/class decision which determined them to be self-employed in the first place, was made decades before the worker appears in the SWAO. The decision that an individual courier will be found to be self-employed is made long before the courier seeks an insurability of employment decision.
Over the past 26 years, many thousands of couriers have been labelled as self-employed by the Dept and the SWAO. None of them have been informed that they are self-employed based on unique ‘criteria’ created exclusively by and for the SWAO in a 1995 test case. None of the thousands of couriers have ever received an individual decision in accordance with their own particular circumstances. The decision by the Dept and the SWAO to label all couriers as self-employed is a ‘blanket’ decision based on just one case in 1995. Individual decisions are not made in each case, that is simply untrue and is demonstrably untrue.
10. In her Dáil reply, Minister Humphreys States:
“This approach was a precursor to the subsequent development on a tripartite basis of the Code of Practice for determining employment or self-employment status of individuals under the Programme for Prosperity and Fairness”
This statement from the Minister in her Dáil reply, is entirely false. Following the disclosure of this particular statement at the Public Accounts Committee earlier this year, the Irish Congress of Trade Unions released a statement categorically denying any involvement on the use of or the approach of the use of test cases. ICTU denied in full, that it had any knowledge that the ‘Code of Practice’, cited by the Minister, replaced the use of test cases. The creation and use of test cases was not done or agreed on a ‘tripartite basis’. It was and is, exclusively a process used by employers, Dept. SW, SWAO and the Revenue Commissioners.
The use of test cases did not stop with the advent of the Code of Practice. In the Oireachtas SW Committee the Chief Appeals Officer, despite initially denying the use of test cases, then admitted that the approach of using test cases was used during her tenure in 2016 and that she was fully aware that the approach of using test cases was used during her tenure in 2016. That the Minister is repeating this falsehood in a Dáil reply as fact, even after it was admitted by the Chief Appeals Officer that it is not fact, severely undermines the evidence I gave to Oireachtas Committees and irrevocably injures my reputation.
The voluntary Code of Practice is a product of the Employment Status Group, the details of which are contained in ‘Tax Briefing, Issue 43, April 2001”. The Employment Status Group was established and had its first meeting between the dates of 15th July 2000 and 9th August 2000.
On the 25th of July 2000 the PAC Chairman wrote to the Revenue Chairman asking why all couriers were labelled as self-employed. On the 9th of August 2000 a reply from the Chairman of the Revenue Commissioners to the Chairman of the Public Accounts Committee states –
“The issue of couriers was also raised at a recent inaugural meeting of an ’employment status’ group set up under the auspices of the Programme for Prosperity & Fairness”
“I understand Mr. McMahon has formally taken up the question of his insurability status with the Dept. of Social, Community and Family Affairs”
And I had. I was a motorcycle courier working for Securicor. I knew nothing about the special tax agreement nor why my employer, Revenue and Dept. SW were labelling me as self-employed. On the 15th of July 2000, I wrote to the Scope Section of the Department of Social Welfare and requested a formal insurability of employment decision. I gave detailed reasons why I believed I was an employee and not self-employed.
But it was this letter from the Secretary to the Chairperson of the Public Accounts Committee which was sent to me in April 2001 which finally shows exactly what the Employment Status Group and the Code of Practice were and why the ESG was established –
“I believe your case was one which gave rise to this group’s formation and I know it was certainly discussed at some of the Group’s meetings!”
To this day, I am very annoyed that a group of civil servants, trade union representatives and business lobbyists met to discuss my employment status after I had requested a formal insurability of employment decision and long before the decision issued. The true factual position in relation to the Code of Practice is that it was created by a group which was specifically set up to discuss my individual insurability of employment case and that the decision of that group was that the status quo of unlawful test cases should remain regardless of the evidence I presented in my case. That the Dept. SW representative on the ESG was also a Deputy Chief Appeals Officer in the Social Welfare Appeals Office terminally prejudiced any chance that I would get a fair hearing in the SWAO, decided on my own individual employment circumstances.
The true factual position in regard to the Code of Practice is that is a meaningless document which can be interpreted to mean anything the Dept. SW, Revenue and the SWAO want it to mean and that it was, in fact, a cover-up for meeting between vested interests to discuss my individual case while it was sub judice and to decide that I was not to get a fair hearing on my own individual employment circumstances in the Social Welfare Appeals Office. The continuing use of the voluntary Code of Practice 21 year later and the Minister’s false statements in regard to the Code of Practice, not only denied me the right to have my case heard on its own merits, it is a massive and unresolved perversion of all worker’s rights.
11. In her Dáil reply, Minister Humphreys States:
“The Chief Appeals Officer has also advised me that every individual making an appeal to her Office always has the opportunity of having any evidence in their own case presented to and considered by an Appeals Officer”
This is an entirely false statement. In 2019, I requested details of all and every ‘test case’ created by the Social Welfare Appeals Office in order to fully represent a worker who had been determined by the Scope Section to be an employee and not self-employed. In order to properly represent the worker, whose Scope Section decision was appealed by the employer to the SWAO, I needed sight of the test cases in order to present the evidence that the SWAO was using different, unlawful criteria, to overturn Scope Section decisions. The SWAO refused and still refuses to release the details of test cases even though the Secretary General did release information to the PAC in regard to the Courier Test Case which proves that there is a database of test cases which the SWAO has access to. Previous test cases of the SWAO may be ones, which if applied to the worker’s case would benefit the worker but if there is no access to them, the worker has no knowledge of them, and the worker has no guarantee that the Appeals Officer will make a determination based on case law and not on spurious unlawful ‘criteria’ made by different colleagues in test cases. It does not require an elaborate review of the relevant case law and fair procedures to come to the conclusion that such a secret system is manifestly unfair. The unfairness is compounded when Appeals Officers and Employers have full access to previous test cases. This raises immediately an ‘equality of arms’ issue. The SWAO cannot have test cases and at the same time claim to determine each case on a case by case basis on its own particular facts.
That this is an entirely false statement is further evidenced by the decision of an Appeals Officer in 2000 to adjourn an appeal from pushbike courier Mr. Richard McArdle and to refuse to hear the appeal unless and until I ceased to represent him. Mr. McArdle was insistent on having me as his representative and the Appeal was never reconvened.
What this statement from the Minister fails to reveal is that even if a worker has the opportunity to present evidence in their own case, the existence of a pre-existing test case and the decision from the Employment Status Group that the worker must be forced to the High Court to challenge a pre-existing test case, means that the evidence presented by the worker WILL NOT be considered by an Appeals Officer. In fact, regardless of what evidence a worker presents, the decision has already been made, long before the worker presents evidence to an Appeals Officer, that the SWAO will rule in favour of the employer and the worker must appeal to the High Court to have their evidence considered.
12. In her Dáil reply, Minister Humphreys States:
“On rare occasions, usually where a number of workers are engaged by the same employer are concerned, she may be asked either by the workers or the employer, to make decisions on a ‘sample’ number of cases”
This statement from the Minister is not only false, it exposes that the Minister (and the CAO) are actively usurping the authority of the Higher Courts and the Oireacthas to create their own group and class decisions in defiance of ALL existing legislation. The Minister has admitted earlier in her Dáil reply that a single test case can be used across an entire sector with multiple employers as happened in the Courier Industry. There are serious constitutional issues with making a decision affecting a group of people without proper procedures and safeguards. There MUST be specific legislation to permit Appeals Officers to make determinations on the employment status of groups or classes of workers, which there is not. Only the Oireachtas can create legislation and only the Courts can hand down precedent. It is not within the powers of the Social Welfare Appeals Office to create its own precedents with test cases. That Group and Class decisions are ultra vires is further confirmed in a letter dated 9th of May 2019 from the Secretary General of the Department of Employment Affairs and Social Protection to the Public Accounts Committee which states:
“There is no legislative provision which provides for Appeals Officers to make decisions on the employment status of groups or classes of workers who are engaged or operate on the same terms and conditions”
That these decisions are not ‘sample’ cases but are in fact, ‘test cases’ was confirmed in the Oireachtas SW Committee Mr. Tim Duggan Assistant Secretary, to the Chairperson of the PAC by the Secretary General of the Dept. SW, to me in writing by the Social Welfare Appeals Office, to SIPO by the Minster herself, and also by the Chief Appeals Officer in the Oireachtas SW Committee despite her initial denial of the use of test cases.
That the Minster is claiming that the only commonality in these group/class determination is that the workers are engaged by the same employer is false. As in the courier test case decision, many thousands of workers who work for hundreds of different employers were and are all determined to be self-employed by the SWAO and the department based on one test case.
Of further concern is that the Minister’s statement directly conflicts with the above statement by the Secretary General in regard to workers operating on the same terms and conditions, and also directly conflicts with a statement given to the Irish Times by former Minister Doherty published on March 25th 2019 which states:
“The Minister is also looking at changing legislation to permit deciding officers to make determinations on the employment status of groups or classes of workers who are engaged and operate on identical terms and conditions”
Having the same employer is not the same as operating on identical terms and conditions. There is no basis for group and class decisions based solely on having the same employer. In 2016, 16 construction workers, some bricklayers, some labourers and 2 others who had been forced by their employer to set up a company to funnel their wages through, were told by and Appeals Officer that their cases would all be used as ONE test case. The only commonality for these workers is that their employer settled an outstanding wages bill for all 16 in the Labour Court. This approach of using test cases to decide the employment status of workers in several differing occupations entirely based on the fact that they had one employer exposes the deep lack of understanding of what insurability of employment determinations should be by both the Minister and the CAO. The SWAO and the Dept. Social Welfare are simply making up their own rules to achieve a predetermined outcome.
That these ‘sample’ cases are, in fact, group/class test cases was also confirmed by the Minister in the same Irish Times piece where she states:
“At present both employers and workers have to agree to such class decisions, and these can be subject to separate individual appeals”
There is no legislation to allow the use of group and class decisions which means that there is no legal recourse for couriers, as a group/class, to take to have the unlawful group/class decision made by the SWAO and the Department, overturned. This is an extremely important point which shows that Couriers cannot legally undo the illegal decision to label them all as self-employed, no pathway exists in law.
13. In her Dáil reply, Minister Humphreys States:
“This approach has not been adopted by during the period of her (The Chief Appeals Officer) tenure in any case where the classification of a worker as an employee or self-employed is the issue under appeal”
Once again I find myself completely disrespected and much maligned by this blatantly false statement in the Minister’s Dáil reply. This approach HAS been adopted during the tenure of the Chief Appeals Officer specifically where the classification of 16 construction workers as employees by the Scope Section was under appeal to the Social Welfare Appeals Office in 2016. Although the Chief Appeals Officer initially denied the use of the approach of having test cases during her tenure, under questioning from Senator Alice-Mary Higgins, the Chief Appeals Officer admitted that the approach of using test cases was taken during the period of her tenure with these 16 appeals and that the Chief Appeals Officer was fully aware of this at the time she denied it. I subsequently made a complaint to SIPO that the Chief Appeals Officer had deliberately misled the Oireachtas Committee in denying the use of the approach of test cases during the period of her tenure. SIPO ruled that the denial of the use of the approach of test cases during her tenure was ‘Erroneous Information’ given by the Chief Appeals Officer to the Oireachtas Committee but that the Minister had ‘clarified’ the erroneous statement. Yet, here it is again, a completely false, erroneous and deliberately misleading statement presented as fact in the Minster’s Dáil reply almost 2 years after the Minister supposedly ‘clarified’ the erroneous statement.
14. In her Dáil reply, Minister Humphreys States:
“This approach can be an efficient way of dealing with issues that are common in appeals cases and where there are a number of workers attached to the Appeal”
The approach of using test cases in group/class decisions may be ‘efficient’ for the SWAO and the Minister, but it is entirely unlawful, denies workers the right to an individual hearing and is contrary to natural justice. There can be no such thing as ‘a number of workers attached to the Appeal’. The Scope Section makes an individual insurability of employment determination on a worker, not on a group of workers. Each appeal of a Scope Section Appeal is meant to be an individual Appeal where the circumstances of that worker and only that worker can be heard in the SWAO. That the SWAO is grouping cases together and calling that one ‘Appeal’ is outrageously ultra vires. It also raises serious question about the statistics provided by the SWAO in its annual report which is relied upon by the Oireachtas as an accurate account of the number of Scope Section decisions which are overturned in the SWAO. One Scope Section decision on one worker should equal one Appeal, however, the situation as described by the Minister indicates that one appeal can refer to several Scope Section decisions being overturned and the Oireachtas then being informed by the SWAO that this is one appeal of a Scope Section decision. This begs the question, exactly how many Scope Section decisions are overturned by the SWAO because it is far in excess of the number of Appeals given by the SWAO in its annual report? In the case of Couriers, as is already proven, one Scope Section decision overturned in the SWAO has many thousands of workers attached over 26 years, none of whom have any idea why they are labelled as self-employed, who were not parties to the SWAO test case and did not receive individual appeal decisions. Not a single statistic in regard to insurability of employment Appeals coming from the SWAO can be relied upon as accurate.
15. In her Dáil reply, Minister Humphreys States:
“However, the approach cannot compromise the integrity or the Appeal process or deny the individual interested party due process”
The approach of unlawful group and class decisions by the SWAO has undoubtedly, and deliberately, compromised the integrity of the Appeal process and denies many thousands of workers due process. This is simply an undeniable fact and the Minister is entirely factually incorrect in this statement.
16. In her Dáil reply, Minister Humphreys States:
“Importantly, an individual decision issues in each case and can be individually submitted to the Chief Appeals Officer or indeed, appealed to the courts”
Thousands upon thousands of workers in the Courier Industry have been determined by the SWAO to be self-employed based on one Appeal hearing in the SWAO. None, not even one, of those workers has received an individual decision which can be appealed to the courts. No working courier was present in the SWAO for the 1995 Appeal which was confirmed by the Appellant Employer to the Employment Appeals Tribunal. This has led to the ridiculous situation where the Appeals Office made a determination that all couriers are self-employed, but because all couriers have not received an individual decision, and the Scope Section is entirely unaware of the 1995 test case and the precedents it set, the worker is then forced to go through a very long and arduous process which has already pre-determined that the worker will be determined by the SWAO to be self-employed. The SWAO gets 2 bites at the same cherry, once in the absence of the worker and again as theatre where the courier will automatically be determined to be self-employed. This charade, where no matter what evidence the courier presents to the Scope Section or the SWAO, will always result in a decision of self-employment, can only and fairly be described as a ‘Kangaroo Court’.
I respectfully request that the Clerk of the Dáil treat this matter with urgency as every moment these false utterances are allowed to exist on the Oireachtas record is more injury and adverse effect done to my reputation.