Boyle v Atlantic Dawn Ltd

• Jurisdiction: Ireland
• Judgment Date: 05 September 2003
• Judgment citation (vLex): [2003] 9 JIEC 0501
• Date: 05 September 2003
• Court: Employment Appeal Tribunal (Ireland)

Employment Appeals Tribunal

EAT: Boyle v Atlantic Dawn Ltd.

Abstract:

Employment law - EAT - Unfair dismissal - Contract of service - Share fishermen - Whether claimants employees - Factors to be taken into consideration - Payment of claimants - Description on documents - Control of claimants by employer - Whether claimants required to perform duties personally - Whether employer afforded claimants fair procedures - Unfair Dismissals Acts 1977 to 2001 - Minimum Notice and Terms of Employment Acts 1973 to 2001 - Partnership Act 1890

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD416/2002, MN808/2002

UD417/2002, MN809/2002

CLAIMS OF:

Paul Boyle, Curraghfehin, Bruckless, Co Donegal

Kevin Sweeney, Kilraine, Glenties, Co Donegal

against

Atlantic Dawn Ltd, Ellemwood Terrace, Killybegs, Co Donegal under

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2001

UNFAIR DISMISSALS ACTS, 1977 TO 2001

I certify that the Tribunal

(Division of Tribunal)

Chairman:

Mr. P. O'Leary B L

Members:

Mr. D. Morrison

Mr. M. Mc Garry

heard these claims at Donegal on 17th October 2002 and 10th June 2003.

Facts The claimants were both dismissed. A preliminary issue to be determined was whether the claimants worked under contracts of service or whether they were share fishermen. They were paid a fixed amount as distinct from a share in the value of the catch and all documentation referred to them as employees. However, the respondent contended that it was always intended that they would be share fishermen and were only paid a fixed amount initially on account. They were also expected to attend to their own tax affairs and had no entitlements to sick or holiday pay. The level of control of the claimants exercised by the officers of the ship was also considered. The claimants were dismissed because of an incident on a flight.

Held in awarding the first claimant EUR9000 and the second claimant EUR30,000 under the Unfair Dismissals Acts 1977 to 2001 and the Minimum Notice and Terms of Employment Acts 1973 to 2001 that the claimants were employed on contracts of service and were therefore employees. Their dismissals were unfair procedurally and subjectively. The employer made no realistic attempt to comply with natural justice or fair procedures.

Claimant's Case

1 The second named claimant stated in evidence that he was originally informed in early June 2002 that he was dismissed from his employment on the fishing vessel called “Atlantic Dawn”. A short time later he was told that this dismissal had been rescinded and replaced by a suspension without pay. During this suspension an investigation into his involvement in a dispute on a trip from the Canary Islands to Donegal was to be undertaken. Despite several enquires as to his status no investigation had taken place by October when he instructed his solicitors to write to the owner of Atlantic Dawn Limited in relation to his case.

2 As a result of a reply to this letter the claimant felt that this company was “washing their hands” of the situation. This was the first time he heard of Marine Manning Services Limited. The witness had no memory of a document dated 7 March 2000 or of receiving other documentation related to his employment on this vessel. A fixed set amount was paid into his bank account each month less minor non-statutory deductions. There was no clarity in relation to his tax and social welfare contributions. The issue of sick pay never arose and the claimant said that he did not get holiday.

3 In cross-examination the claimant accepted that the document dated 7 March 2000 stated that he was employed on a voyage-to-voyage basis. This document also described the claimant's Position as a factory worker and as an employee. There was no discussion on how his income was determined and the claimant was not aware that his income could be affected by the value of the catch on a particular voyage. He had no knowledge of the financial affairs of the vessel and did not know he would get a share of the value of the catch. The...