Case Number: MN341/2012, UD394/2012. Employment Appeals Tribunal

• Judgment Date: 01 June 2014
• Year: 2014
• Docket Number: MN341/2012, UD394/2012
• Court: Employment Appeal Tribunal (Ireland)

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF: CASE NO.

MN341/2012

William Kelly, - claimant UD394/2012

against

Charles Kelly Limited, - respondent

under

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman: Mr M. Gilvarry

Members: Mr. D. Morrison

Ms. A. Moore

heard this claim at Letterkenny on 30th July 2013

Representation:

_______________

Claimant : In Person

Respondent(s) : Mr Tiernan Doherty, IBEC, Floor 3, Pier 1, Quay Street,

Donegal Town, Co Donegal

Determination

The claimant and the managing director (MD) of the respondent are siblings, and this case comes in the context of a history of litigation relating to the company which has been taken as far as the Supreme Court.

While of course this legal dispute is entirely separate to the claim before the tribunal, which is for unfair dismissal and minimum notice, some reference was made to it during the course of evidence from the parties.

The claimant in this case was unrepresented but presented a complicated matter with no small degree of skill, and likewise the respondents’ representative also presented the Company’s case in a skilful and incisive manner.

While a large amount of detailed evidence and submissions were heard by the Tribunal, the case in its essence turns on the status of the claimant.

If the claimant is found to have been an employee of the respondent then his claim will have to succeed as no evidence to justify dismissal was volunteered by the respondent, whereas if he is not it must fail.

The question of whether or not a person is an employee is one which must be decided on the individual circumstances of each case. There are often mixed questions of fact and law Nonetheless some factors are common to many of the decided cases in this area.

Mr Justice Edwards in the case of Minister for Agriculture –v- Barry (2008 IEHC 216) stated “The case of Henry Denny and Sons v Minister for Social Welfare [1998] I I.R. 34 is very instructive. The appellant Ms Mc Mahon worked as a shop demonstrator for Denny she received a daily rate of pay and her contract described her as an independent contractor. The demonstrations were not carried out under supervision and materials were provided by the company. The question arose as to whether Ms. McMahon was employed under a contract of service or a contract for services. The Supreme Court held that in deciding whether a person is employed under a contact of service or a contract for services, each case must be determined in light of its particular facts. In general, a person will be regarded as being employed under a contract of service and not as an independent contractor (a contract for service’s) where he or she is performing service for another person and not for himself or herself.”

In Kirwan –v- TEEU [2005] IEHC 5 Miss Justice Laffoy stated

“The decision in the Denny case was followed by the Supreme Court in Castleisland Cattle Breeding Society Limited v. Minister for Social and Family Affairs [2004] I.E.S.C. 42. In his judgment, with which the other four members of the court concurred, Geoghegan J. stated as follows;

"There is nothing unlawful or necessarily...