Maintenance worker in unfair dismissal case against HSE

A maintenance worker in a special care unit for young people with behavioural issues has taken an unfair dismissals case against the HSE.

Dermot Comerford carried out a maintenance work at Ballydowd special care unit between 2006 and 2013, having previously worked for an agency which provided maintenance at the unit.

He claims he was unfairly dismissed in 2013 after being asked to provide evidence of public liability insurance, which he says he did not require because he was an employee.

Independent contractor

The HSE denies this and says Mr Comerford was an independent contractor.

Acting director of the unit, John Fox, told the Employment Appeals Tribunal (EAT) the unit provides secure residential accommodation for young people with emotional and behavioural difficulties who are detained by High Court order "for their own safety", even if they have not committed a crime.

The facility, which was run by the HSE prior to being taken over by Tusla, provides residential services to boys and girls aged from 11 to 17 years old, who are detained involuntarily in a locked facility which Mr Fox described as “akin to” a prison or juvenile detention facility.

He said the residents sometimes caused damage at the facility. Therefore, as well as general maintenance duties, Mr Comerford also replaced broken windows and would “swap out” locks.

Fire safety checks

He carried out regular fire safety checks and was a member of the health and safety committee.

Mr Fox said Mr Comerford’s role was that of an independent contractor; he was not paid for holiday leave or sick days, and invoiced the HSE on a monthly basis.

Mr Fox said that in 2012 he was informed by the HSE that contractors were required to provide Revenue documentation showing they were registered as self-employed and tax compliant, as well as providing proof of public liability insurance.

Mr Comerford maintains he did not need to provide such documentation as he considered himself to be a HSE employee.

Documents furnished

Mr Comerford furnished documents to the HSE in May 2013 on the basis of advice from his accountant stating his claim that he should be considered a HSE employee.

Mr Comerford’s legal representative said it was his position that the characteristics of his relationship with the HSE were those of an employee, other than how he was paid.

Legal representatives were asked to provide written submissions to the EAT ahead of a determination being made in the case.