The road to bogus self employment.

Martin McMahon continues his expose of the biggest scam Irish tax history.

Part 1 here.

The Courier was represented by a union who provided their own legal team. The courier had lost his job and could not afford to engage representation of his own. 48 hours before the resumed hearing the union had informed the courier that their Barrister was the first cousin of the Manager named in the Social Welfare Inspector’s Report.

That Manager was not at the reconvened hearing. The courier had been notified by the SWAO that he would be fined for non appearance. This Barrister’s Legal Submission broadly followed the Minister’s Legal Submission.

The Appeals Officer dismissed the INS1 forms as ‘not particularly instructive‘ and then instructed the Social Welfare Inspector to read his (falsified) report aloud which he did.

An attempt was made by the Barrister for the courier company to introduce what he called a ‘Written Contract’. Upon examination, it turned out that it wasn’t a written contract. It was a single page ‘Application Form’ the courier had been required to fill out when he joined the company. It asked for his name, address, previous employments and RSI number.

This page had been stapled to the bottom of an extensive contract which the courier had never seen. The Barrister claimed that it was a mistake and withdrew the contract. An account of this is contained in a subsequent ‘Attendance Docket’ written by one of the solicitors present:

“(Barrister for the Courier Company) produced a ‘Contract/Application Form’ which were pinned together, together with a covering sheet. (Opposing Barrister) pointed out that the document produced was never given to (The Courier) and he only got one single page, and that was the reason he signed it. (Courier Company Barrister) made a big deal of the fact that he had signed one page of it and not the other. The effect was that it looked like a complete contract which had been furnished to all couriers, which clearly was not the case. (Barrister for the Courier Company) conceded this.”

And that was it. The Appeal lasted 4 hours. No new evidence was presented. The false written contract the Courier Company attempted to introduce was exposed as a fake and despite being told that they were required to provide Grounds of Appeal in the hearing by the Appeals Officer, the Courier Company never did.

To Hell or the High Court

On June 5, 2001 the Social Welfare Appeals Office issued its first decision:

“I consider that the courier here is employed under a contract of services (employee). As indicated, the circumstances her of the engagement of (courier) by the appellant company are more in keeping with a contract of services (employee) rather than of an employer and employee one. ​Consequently on the evidence and in law the appeal succeeds.”

Not just once but twice in the Appeals Office decision it says the courier is Contract of Service (employee) and still the appeal is allowed and the courier is classified as self-employed.

​Following a telephone call from the courier to the Social Welfare Appeals Office protesting this contradictory decision, another decision is issued on 11 June. This decision repeats word for word that the courier is an employee and that the appeal is allowed.

On June 13, a letter was sent to the courier from the SWAO, it stated:

“Due to a typing error …. the decision sent to you was incorrect”

This time the decision stated that the courier was ‘Contract For Service’ (self employed). The Appeals Officer, a civil servant, then cited both the Denny case AND the McAuliffe case as rationalization for his decision.

On June 29, Solicitors who had been present in the SWAO hearing wrote to the Chief Appeals Officer:

“We are most surprised at the decision reached by Appeals Officer in this case. No new evidence was presented by the Appellant. It is quite clear, that the effect of the decision of the Supreme Court in the Denny case in 1988, when applied to the facts of the (individual courier) case, leads to but one conclusion:- that (the courier) was directly employed by the (Courier Company) on a Contract of Service”

This letter not only represented the views of the Union legal representatives, but also the views of the Minister of Social, Community and Family Affairs Legal representatives.

The Social Welfare Appeals Office refused to budge. It didn’t care what the Supreme Court had ruled, the ruling from the Kangaroo Court overruled the Supreme Court. Policy Direction would forever more supersede Applicable Law in the Social Welfare Appeals Office.

All evidence would be ignored, and the SWAO would always support the employer thus forcing the punitive employee to the High Court to defend the employment status decision made by SCOPE. The High Court is not a financially viable option for any ordinary worker. The cost involved are prohibitive.

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