A leading translation agency has been ordered to pay €2,000 to an interpreter for unfairly dismissing her when it said she would no longer be paid through payroll – but would have to send invoices instead.
In a decision just published, a Workplace Relations Commission adjudicating officer wrote that it was “most surprising” that the agency, Forbidden City Ltd, had not figured out how to make it clear to its translators “whether they are or are not employees” years on from a High Court ruling in its favour.
Angela Nagle, who had been sent by the agency to courthouses, Garda stations and hospitals in Co Kerry and parts of Co Cork to provide interpreting services in eastern European languages since 2009, said she was “summarily and unexpectedly dismissed” by the company in December 2021.
Forbidden City Ltd, which trades as Translation.ie, denied her claim, contending she had never been an employee and could not have been dismissed.
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In her evidence, Ms Nagle said that after she had worked for the company for a number of years, one of its directors – identified only as Mr P in the decision – told her in May 2013 that her status “was to change to that of employee”.
Ms Nagle said she confirmed to Mr P at the time that she was not working as an interpreter otherwise and started to receive “employment slips” from then on, but no contract of employment, despite asking for one.
In December 2021, a different company director, Ms L, wrote to state that the firm wanted Ms Nagle to provide invoices.
“Revenue recently updated their guidance notes regarding the tax treatment of self-employed contractors. As a result we now have clarity on how payments to you, as a self-employed translator, are to be treated,” Ms L told Ms Nagle in a letter submitted in evidence.
Ms Nagle’s solicitor, Karen Tess of Mannix & Co LLP, argued the company was “wrong” to suggest her client was “self-employed” at this time.
However, from that point onward, Ms Nagle was “obliged to operate as a self-employed translator”.
Ms Tess submitted payslips and tax certificates in evidence, with the tribunal noting that USC and PAYE had been deducted from them and annual leave payments made.
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HR consultant Karen Talbot, who appeared for Forbidden City, said the company “opted to run [Ms Nagle] through their payroll system” in order to deal with withholding tax “at Revenue direction”.
“This is a reasonably normal practice when engaging certain classes of employee on a contract for service basis,” she said, adding that the only reason payslips were generated for Ms Nagle was to meet this “Revenue obligation”.
Ms Tess said her client had been denied either notice pay or any redundancy entitlement.
Ms Nagle said she was “very upset” at how she was treated, as her job security was “removed without discussion, without appeal and without consent” – adding that she felt “disregarded and deceived”.
The tribunal heard that Forbidden City had won a previous legal challenge on employment rights by one of its translators in 2016 in Monnie McKayed v Forbidden City, when the High Court found there was no “mutuality of obligation” between the appellant and the agency.
The decision in the case was submitted by the company, with Ms Talbot arguing it was a binding precedent.
Adjudicating officer Penelope McGrath wrote that while Justice Úna Ní Raifeartaigh had been shown “mutually signed documents” in the McKayed case, no such documents had been produced to the WRC in Ms Nagle’s case – instead, there were documents which appeared to bear out an employment relationship.
The adjudicator wrote that it was “most surprising” that the same company had not, 11 years since the McKayed case was first initiated, “found an unambiguous formula for allowing persons it engages to know whether they are or are not employees”.
She added that she was satisfied there had been “mutuality of obligation” in the case, as Ms Nagle was “very busy” and “went where she was told most of the time”.
Ms McGrath made a finding that Ms Nagle had been an employee and that she was also unfairly dismissed as an employee, awarding her €2,000.
