Catch 22 for courier in landmark case
A Dublin motorcycle courier recently won a landmark battle to prove that he is a company employee and not a contractor. Martin McMahon fears, however, that his victory over Securicor Omega Express Ireland Ltd may yet be overturned on appeal because he has been denied funding for proper legal representation. An Phoblacht's MICHAEL PIERSE reports.
A motorcycle courier has been denied state-sponsored legal support in his landmark fight for recognition as an employee rather than a contractor.
Martin McMahon, who works in Dublin for Securicor Omega Sameday, won a landmark case against the company in September, when he was officially recognised by the state as an employee rather than a contractor.
A victory for McMahon would be very significant and have wide ranging potential repercussions for Securicor and other companies working with supposed contractors who are actually employeees
However, as Scope, the Social Welfare department responsible for deciding such issues, prepares to process another 200 bike couriers seeking the same recognition, Securicor Omega is challenging the McMahon decision.
While Martin feels confident that his case is strong enough to withstand the Securicor appeal, he also feels neglected by the Social Welfare Appeals section, which, he says, is unwilling to pay for his legal action. He will need a barrister, corporate lawyer and accountant to represent his case. On earnings of less than £14,000 a year, this is an impossibility without government support, he says.
A victory for McMahon would be very significant and have wide ranging potential repercussions for Securicor and other companies working with supposed contractors who are actually employeees.
Supposed contractors, like Martin, live in a veritable limbo. They are obliged to comply with the same rules as any other employee, sometimes more rigorously because of their lack of security in employment. Nonetheless, they are not insurable in the same way as normal employees, they are not unionised and they are much more susceptible to threats from their employers, because they can be sacked without recourse to the Labour Court, or to normal employee rights legislation.
Martin says that this insecurity in his employment has led to a great deal of anguish for him and other couriers in a similar predicament. ``Three years ago myself, my partner and my child ended up in hospital after a fire in our apartment building. The following day I rang to say that I was not able to come in for work but the manager insisted that I must. Having just lost all our worldly possessions, I was terrified also of losing my job, so I borrowed some clothes from my brother and went to work.
``There have been many, many other occasions such as this,'' he says. ``I constantly see couriers being dismissed for not keeping the hours set by the company, or refusing to work for any reason.
Martin says he has contacted the Health and Safety authority, but to no avail. ``I contacted them to ask if they have ever investigated an accident involving a motorcycle courier whilst carrying out his company's orders. They told me that it is not their responsibility.''
Martin has compiled an impressive case to prove his and his fellow bike couriers' status as employees. Couriers working for the company, he says, are under the direct control of the base controller, ``who directs how, when and where my work is to be carried out''. The couriers do not supply material for the job, he says. The are prohibited from engaging their own helpers. They are not allowed to subcontract their work and the base controller decides who will carry out their work in the event of their absence.
The fact that Martin does not receive a weekly or monthly wage, he says, does not prove that he's a contractor. Bricklayers in many jobs are treated the same way - `paid by the brick'. This is termed as `piece work'. He is also barred by the company from offering his services to other companies. He has to work from 9am-6pm, without exception, while his lunch break, the time of which is decided by the base controller, can last no longer than 30 minutes. He's not registered for VAT.
Martin's P60 states that Securicor Omega Express Ireland Ltd is his employer and that he's their employee, although office staff at the Revenue have stamped the term `sub contractor' on the corner of the document. All documentation, he claims, from the Tax Office and Securicor Omega, clearly states that he is an employee. He is taxed as an employee, over a 52-week period, rather than being taxed on a weekly basis for work done. In effect, he claims, Securicor is operating an ad hoc contract of employment with their couriers, as decided by a base controller under the control of company bosses.
This case left the Scope Department in no doubt as to McMahon's status and prepares the floodgates for another 200 cases. Deciding Officer Fintan Farrelly stated that McMahon was to be considered, under Section 247 of the Social Welfare Act (1993), as an employee of Securicor Omega. ``Having considered all the available evidence on file in this case and the Social Welfare Inspector's report,'' wrote Farrelly, ``I am satisfied that Mr Martin McMahon is employed under a contract of service by the company.'' He continued, unambiguously, to state that McMahon ``is an integral part of the business, has to render personal service and is subject to control, direction and dismissal by the company''.
McMahon, who was pleased and excited by the decision, is now worried that it could be reversed.
Following a visit to the office of the Social Welfare's Chief Appeals Officer, Martin was gutted at the prospect of having to fight another David and Goliath legal battle alone. ``To my absolute astonishment, I was informed that even though I am entitled to legal representation, I am not entitled to any type of financing in this matter,'' he said.
While he continues to seek some way of securing representation, many other couriers and `contractors' will be eagerly awaiting the final unfolding of this story.