The High Court dismissed Monnie McKayed’s unfair dismissal claim after deciding a preliminary issue: whether he was an employee of Forbidden City Ltd., which traded as Translations.ie. The court found the company was not contractually obliged to provide him with work, and the relationship did not meet the mutuality of obligation required for a contract of employment.
The judgment, delivered by Ms Justice Ní Raifeartaigh on 16 November 2016, dealt only with employment status. The court said that, because McKayed was not an employee, his claim under the Unfair Dismissals Acts had to be dismissed. It made no further determinations on the claim.
McKayed began working for the company in July 2008. A managing director gave evidence about a document setting out the working arrangements, which McKayed said he had signed in a different copy with the same terms. It said the company would prioritise him for work, arrange appointments and “endeavour to maintain sufficient work”. The judge read that wording as a commitment to try to provide work, rather than a guarantee of work. The company had no control over how much interpreting work came to it from Gardaí or other State bodies.
McKayed argued that the terms and the parties’ course of dealing showed an employment relationship. He pointed to work over about two and a half years, hourly payment, company training and identification, instructions about where to attend, and being available for calls at any time. He also argued that the court should not apply the mutuality of obligation approach set out in an earlier High Court judgment.
The judge rejected those arguments on the preliminary issue. Regular work did not, by itself, create a legal obligation to provide future work. Although the arrangements gave McKayed priority, the court found they did not prevent him from working for others where there was no conflict of interest. The judge also found that he could refuse a requested assignment, so being liable to receive calls at any time did not amount to being obliged to work around the clock.
The case had previously been decided in McKayed’s favour by a Rights Commissioner in 2011. The Employment Appeals Tribunal later found he was not an employee, and the Circuit Court dismissed his appeal in February 2016. The High Court appeal proceeded after an order extending the time to serve and lodge a notice of appeal.