Case Number: UD659/2012, MN490/2012. Employment Appeals Tribunal

• Judgment Date: 01 July 2014
• Year: 2014
• Docket Number: UD659/2012, MN490/2012
• Court: Employment Appeal Tribunal (Ireland)

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF: CASE NO.

Anthony Hassett UD659/2012

MN490/2012

against

Udaras Na Gaeltachta

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

Mr T. Gill

heard this claim at Castlebar on 30th January 2014

Representation:

Claimant:

Oliver P Morahan & Son, Solicitors, James Street, Westport, Co Mayo

Respondent:

Ms Mairead Ni Rinn, Udaras Na Gaelteachta, Solicitor, Na Farbacha, Co Galway

Background:

It was the respondent’s position that the claimant was self-employed and that he was engaged under a contract for services. However the claimant contended that he was an employee engaged under a contract of employment. There was no written contract in place and therefore the Tribunal invited both parties to give oral evidence in respect of the nature and day to day practice of the claimant’s work. It was common case that the working relationship between the parties ended on 16^th February 2012

Claimant’s case:

It was the claimant’s case that he commenced employment with the respondent on 9th January 2003 and was dismissed on 16^th February 2012.

The claimant told the Tribunal that although he applied for and was granted a C2 from Revenue each year that he was always under the impression that he was an employee with a C2. The claimant paid tax on his own behalf. The claimant only became aware that he may not be an employee when his job went out to tender. This had never happened before. He tendered for the job because he wanted to keep his job but his tender was unsuccessful.

The following is a synopsis of the claimant’s evidence:

• The claimant consistently worked 39 hours per week and was instructed by a manager of the respondent to work 8 hours per day Monday to Thursday and 7 hours on Friday.
• The respondent paid for any equipment and materials required to carry out the work and the claimant was refunded any fuel costs involved in him using his own vehicle in the line of his work.
• The claimant was paid an hourly rate of pay for all the hours he worked during the month and this was paid at the end of each month.
• The claimant never considered that he could work for anyone other than the respondent and was never told otherwise by the respondent.
• The claimant had a list of jobs that he had to carry out on a regular basis and if there were tasks outside of this list he would seek approval from the manager to either carry out this work himself or get a quote for a contractor to do it. If a quote was gotten from a contractor the respondent would then decide whether to go ahead with the work and pay the contractor.
• The claimant never missed work through illness. Whenever he took holidays he would seek the prior approval of the respondent. He did not receive holiday pay but would work up the hours at other times.
• The claimant never engaged anyone else to work in his place while he was on holidays or at any other time.

Respondent’s case:

It was the respondent’s position that the claimant knew from the start that he was engaged by them as a sub-contractor. The claimant completed an application for Revenue each year and this form listed criteria that applied in determining whether a person was self-employed or an employee.

Determination:

The Tribunal carefully considered the detailed evidence and submissions made in this case. 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.

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 ineffective about a company deciding to engage people on an independent contractor basis rather than on a 'servant' basis but as this Court has pointed out in Henry Denny and other cases, in determining whether the new contract is one of service or for services the decider must look at how the contract is worked out in practice as mere wording cannot determine its nature. Nevertheless the wording of a written contract still remains of great importance. It can, however, emerge in evidence that in practice the working arrangements between the parties are consistent only with a different kind of contract or at least are inconsistent with the expressed categorisation of the contract."

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...