Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare

• Jurisdiction: Ireland
• Judge: Miss Justice Carroll
• Judgment Date: 01 January 1996
• Neutral Citation: 1995 WJSC-HC 4681
• Docket Number: No. 912 Sp/1993
• Court: High Court
• Date: 01 January 1996

1995 WJSC-HC 4681

THE HIGH COURT

No. 912 Sp/1993

HENRY DENNY & (IRL) LTD v. MIN SOCIAL WELFARE

BETWEEN

HENRY DENNY AND SONS (IRELAND) LIMITED TRADING AS KERRY FOODS

APPELLANT

AND

THE MINISTER FOR SOCIAL WELFARE

RESPONDENT

1 Judgment of Miss Justice Carroll delivered the 18th day of October, 1995.

2 The nett issue in this case is whether Sandra Mahon, who carried out demonstrating and merchandising services for the Plaintiff in various supermarkets, is an employee of the Plaintiff or an independent contractor.

3 The primary facts are not contested.

4 1. Sandra Mahon applied to the Plaintiff in 1988 for employment, was interviewed and taken on as a demonstrator at various supermarket outlets. She received no formal training but had an induction talk and briefing on the products. She only supplied her labour. She was supplied with a coat (with the company logo) and a demonstration stand. The product used in the demonstration was supplied indirectly by the Plaintiff through the supermarket outlet. She had no supervision by the Plaintiff during work but there was a clause in her contract requiring her to abide by directions and regulations in the supermarket. She got no pay for holidays or illness and was not a member of the company's pension scheme.

5 2. The company has about 70 demonstrators. The basic hours of work were from 10.00 a.m. to 8.30 p.m. on Thursdays and Fridays and from 10.00 a.m. to 5.30 p.m. on Saturdays. If Wednesday night was worked, the Saturday hours were reduced. The basic pay for three days worked together was approximately £85 with mileage at 27p per mile. Sandra Mahon worked 48 to 50 weeks per year. A demonstrator was contacted three to four days before the engagement and if available would carry it out. If not available the demonstrator could, with the approval of the Plaintiff, appoint another person to do the work. She was free to refuse work.

6 3. Claims for payment were submitted on a "demonstration invoice" which had to be signed by the manager of the supermarket outlet and was paid once a fortnight. The invoice also contained a general report on comments of the customers.

7 4. The target to be achieved by the demonstrators was an increase in sales of a particular product 2.5 fold.

8 5. Each demonstrator signed a yearly contract which provided that each time a demonstrator performed a task it was a separate contract. If a demonstrator proved unsuitable, he/she was not provided with work and at the end of the year the contract was not renewed.

9 6. A demonstrator was free to do other work and was free to refuse to work.

10 Sandra Mahon was initially engaged on the 11th July, 1988 under the terms of a written agreement which expired on the 31st December, 1988. She was re-engaged under separate written agreements for the period of twelve months for the years ended the 31st December, 1989, 1990, 1991, 1992 and 1993. There were slight variations in the terms of the contract over the years.

11 A comparison between the general terms and conditions operative in 1989 and those operative in 1992 will illustrate.

1989	1992
1. DEFINITIONS.	1. DEFINITIONS.
In these terms and conditions Kerry Foods means Henry Denny and Sons Ireland Limited.	In these terms and conditions the following words and expressions shall have the meaning set forth on this clause. Kerry Foods means Kerry Foods Limited whose registered office is situated at Princes Street Tralee in the County of

	Kerry and whose business address is situate at the Cookstown Industrial Estate, Tallaght County Dublin.
"The demonstrator means the person or persons whose services have been retained for the purposes of demonstrating and/or merchandising and/or promoting the products of Kerry Foods at various venues throughout the area.	(Identical)
The products means such products as Kerry Foods may from time to time wish to demonstrate, promote, market and sell.	"The products" means such products as Kerry Foods may from time to time wish to demonstrate, promote, merchandise or sell in the area.
"The area" means the geographical area which has been agreed between Kerry Foods and the demonstrator and within which the demonstrator is to perform his/her functions hereunder.	"The area" means the area described in the schedule hereto within which the demonstrator is to perform his/her functions hereunder.
2. RETENTION OF SERVICES	2. RETENTION OF SERVICES
Kerry Foods may at its absolute and sole discretion	Kerry Foods may at its absolute and sole discretion

and on such occasions as it thinks fit, retain the services of the demonstrator for the purposes of demonstrating and/or promoting and/or merchandising the products at such venues within the area as Kerry Foods require. Kerry Foods shall give the demonstrator not less than 24 hours notice of the retention of his/her services hereunder. In the event of the demonstrator being unable for any reason to provide a service hereunder when requested so to do, the demonstrator shall at the earliest opportunity so inform Kerry Foods.	and on such occasions as it thinks fit retain the services of the Demonstrator and the Demonstrator agrees to provide demonstration and/or promotional and/or merchandising service as may be required in respect of the products or any of them at such venues within the area as Kerry Foods may from time to time require. Kerry Foods shall give the Demonstrator where possible and practicable not less than 24 hours notice of each occasion upon which it will require the Demonstrator to provide a service hereunder. Nothing in this clause shall operate to prevent Kerry Foods in consultation with the Demonstrator from arranging for the provision of the service at regular intervals at any particular location or locations during the term of this Contract.
	3. UNAVAILABILITY OF DEMONSTRATOR
	The Demonstrator shall in the event of him/her being unable

	for any reason to comply with the request for the provision of a service hereunder by Kerry Foods at the earliest opportunity inform Kerry Foods of his/her unavailability. The Demonstrator shall in such an event co-operate and assist Kerry Foods in arranging for the hiring of another suitable person to provide the service hereunder.
3. PERFORMANCE OF FUNCTIONS	4. PERFORMANCE OF FUNCTIONS
The demonstrator shall use his/her best endeavours to promote and/or demonstrate and/or merchandise the products to the best advantage of Kerry Foods and shall at all times while forming his/her functions hereunder act in the best interests of Kerry Foods. The demonstrator shall at all times be courteous towards customers or potential customers of Kerry Foods.	(Identical)
4. PROPER DRESS	5. PROPER DRESS
The demonstrator shall present himself/herself in a	(Identical)

neat, clean and tidy manner, properly attired and shall wear such uniform, jackets, coats and/or head-dress as Kerry Foods may from time to time require and shall at all times present himself/herself in a manner that benefits a demonstrator/merchandiser/promoter of food products.	(with addition) ..... and shall have particular regard to cleanliness and hygiene.
5. PUNCTUALITY	6. PUNCTUALITY
The demonstrator shall punctually attend at the time(s) stipulated by Kerry Foods at the location where the demonstration, promotion or merchandising of the product is to take place.	(Identical except for) .... at the location where the service is to be provided.
6. ABIDE BY REGULATIONS	7. ABIDE BY REGULATIONS
The demonstrator shall abide by such directions and regulations as may be in force at the place where the demonstration/promotion/merchandising is to take place. In the event of the demonstrator considering that any such directions or	(Almost identical except for)

regulations are so restrictive that they effectively prevent or (severely) inhibit the performance of the demonstrator's functions hereunder, the demonstrator shall at the earliest opportunity inform the sales manager for the time being of Kerry Foods whose decision on the matter shall be final and binding.	.... inform an appropriate Senior Executive of Kerry Foods of the matter who shall take such action in relation thereto as he/she may deem appropriate.
7. MISCONDUCT	8. TERMINATION
If the demonstrator shall be guilty of any serious misconduct or neglect of his/her duties or shall fail to observe the terms and conditions of this agreement, then and in such event it shall be lawful for Kerry Foods to forthwith terminate the particular contract under which the services of the demonstrator are retained without prejudice to any other remedy which Kerry Foods may have in such an event against the demonstrator.	(Almost identical except for) ... to terminate his/her contract without prejudice to any other remedy. Without prejudice to the foregoing either party may terminate this Contract by giving to the other one
	Without prejudice to the foregoing either party may terminate this Contract by giving to the other one

	month's notice in writing to expire on any day.
8. INDEPENDENT CONTRACTOR	9. INDEPENDENT CONTRACTOR
The demonstrator is and shall be deemed to be an independent contractor and nothing in this agreement shall be construed as creating the relationship of master and servant or principal and agent. It is further agreed that the provisions of the Unfair Dismissals Act, 1977shall not apply to the contractual relationship between Kerry Foods and the demonstrator.	(Almost identical)
9. PROPERTY OF KERRY FOODS	10. PROPERTY OF KERRY FOODS
All uniforms, coats, overalls, head-wear and utensils given to the demonstrator by Kerry Foods, shall at all times remain the sole property of Kerry Foods and the demonstrator shall take all...