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

• Jurisdiction: Ireland
• Judge: Hamilton C.J.,Keane J.,Mr. Justice Francis D Murphy
• Judgment Date: 01 January 1998
• Neutral Citation: [1997] IESC 9
• Court: Supreme Court
• Docket Number: [S.C. No. 378 of 1995]
• Date: 01 January 1998

HENRY DENNY & SONS (IRL) LTD T/A KERRY FOODS v. MINISTER FOR SOCIAL WELFARE

BETWEEN:

HENRY DENNY & SONS (IRELAND) LTD. TRADING AS KERRYFOOD

Appellants

and

THE MINISTER FOR SOCIAL WELFARE

Respondent

[1997] IESC 9

HAMILTON C.J.

KEANE J.

MURPHY J.

378/95

THE SUPREME COURT

Citations:

CASSIDY V MIN FOR HEALTH 1951 2 KB, 1951 1 AER 574

GRAHAM V MIN FOR INDUSTRY 1933 IR 156

QUEENSLAND STATIONS PROPERTY LTD V FEDERAL COMMISSIONER OF TAXATION 1945 70 CLR 539

MARA (INSPECTOR OF TAXES) V HUMMINGBIRD LTD 1982 2 ILRM 421

MARKET INVESTIGATIONS LTD V MIN FOR SOCIAL SECURITY 1969 2 QB 173, 1969 2 WLR 1, 1968 3 AER 732

MCAULIFFE V MIN FOR SOCIAL WELFARE 1995 2 IR 238 1995 1 ILRM 189

O COINDEALBHAIN (INSPECTOR OF TAXES) V MOONEY 1990 1 IR 422

SUNDAY TRIBUNE LTD, IN RE 1984 IR 505

1 1st day of December 1997 by Hamilton C.J.

Hamilton C.J.

2 I agree with the judgments already delivered but I believe it would be desirable to take this opportunity of expressing the view that the Courts should be slow to interfere with the decisions of expert administrative tribunals. Where conclusions are based upon an identifiable error of law or an unsustainable finding of fact by a tribunal such conclusions must be corrected. Otherwise it should be recognised that tribunals which have been given statutory tasks to perform and exercise their functions as is now usuallythe case with a high degree of expertise and provide coherent and balanced judgments on the evidence and arguments heard by them it should not be necessary for the Courts to review their decisions by way of appeal or judicial review.

3 1st day of December, 1997byKeane J.

Keane J.

4 Demonstrators who offer passing shoppers free samples of wine, cigarettes, sausages or whatever are a familiar feature of supermarkets today. The net issue in this case is as to whether they are properly regarded in law as engaged in their tasks under a "contract of service" or a "contract for services".

5 The significance of the distinction is that if such a demonstrator is regarded as being employed under a contract of service, then he or she is aninsurable person for the purposes of the Social Welfare Acts 1993to 1997. In the case of Ms. Sandra Mahon (hereafter "Ms. Mahon") who performed such services for the Appellants, a deciding officer, an appeals officer and the Chief Appeals Officer in the Department of the Respondent were of the opinion that she was employed under a contract of service and hence was an insurable person. That conclusion was upheld on appeal to the High Court by Carroll J. in a judgment delivered on the 18th October 1995. From that decision, the Appellants have appealed to this court.

6 The relevant legislation can be shortly summarised. Under s.5(1)(a) of the Social Welfare (Consolidation) Act 1981(the Act in force at the time that the question arose in relation to Ms. Mahon), every person over the age of 16 years and under pensionable age is "an insured person" for the purpose of the legislation if he or she is employed in any of the employments specified in Part 1 of the First Schedule. Paragraph 1 of Part I refers to:

"Employment in the State under any contract of service or apprenticeship written or oral, whether expressed or implied, and whether the employed person is paid by the employer or some other person, and whether under one or more employers, andwhether paid by time or by the piece or partly by time and partly by the piece or otherwise, or without any money payment."

7 Under s.111 (1), every question arising inter alia as to whether the employment is or was insurable employment is to be decided by a deciding officer of the Respondent. S.298(1) provides that, if any person is dissatisfied with that decision, the question is to be referred to an appeals officer. S.300(4) provides that:

"The Chief Appeals Officer may, at any time and from time to time, revise any decision of an appeals officer, if it appears to him that the decision was erroneous by reason of some mistake having been made in relation to the law or the facts and...any person who is dissatisfied with the revised decision may appeal therefrom to the High Court on any question of law."

8 The facts - which were not at any stage materially in dispute - should now be set out.

9 Ms. Mahon contracted the Appellants by telephone in or about 1988 with a view to providing her services as a demonstrator and, having beeninterviewed, was placed on the panel from whom demonstrators are selected by the Appellants. She was engaged on the terms of a written contract. The contract expired at the end of each year and a fresh contract was then entered into annually between her and the Appellants. The Appellants have approximately 70 demonstrators on their panel.

10 The manner in which Ms. Mohon's services were availed of by the Appellants was as follows. The particular retail store which required one of the Appellants' food products to be demonstrated got in touch with the local customer service manager of the Appellants and asked for such a demonstration specifying the day or days upon which it was required. Three or four days before the date of the proposed demonstration, the manager would telephone a demonstrator on the panel to enquire whether or not the demonstrator was available to provide her services on the particular days at the specified shop. Generally speaking, neither the demonstrator nor the Appellant knew prior to this time whether or not a demonstration was to be given at any particular shop or store during the immediately following weekend. If the demonstrator was available, it was agreed that the service should be provided. The demonstration was carried out without any supervision by the Appellants.

11 Ms. Mahon submitted an invoice in respect of the services provided after each demonstration to the Appellants.. The invoices were not treated asvalidunless they were signed by the manager of the particular store in which the demonstration was carried out. Her fees were discharged on a fortnightly basis on production of the completed invoices. She was paid approximately £28.32 per day for her services and was also paid travelling expenses at the rate of 27p per mile. She was not a member of any pension scheme of the Appellants nor was she a member of a tradeunion.

12 New contracts were entered into by the Appellants with Ms. Mahon in respect of each of the years ending 31st December 1991, 31st December 1992 and 31st December 1993. While there were some differences, the contracts for each of the years in question were in broadly the same terms. That in force for the year ending 31st December 1993 contained a number of important provisions which must be set out in full.

13 The letter from Ms. Bernie Campbell, the customer services manager, confirming the retention of Ms. Mahon and enclosing the terms and conditions of her employment, began as follows:-

"This is to confirm that Kerry Foods Limited is willing to retain your services as a demonstrator/merchandiser commencing on the 1st day of January 1993 and ending on the 31st day of December1993."

"For the avoidance of all doubt, I am obliged to point out to you that you will not be an employee of Kerry Foods, you will be providing it with your services as an independent contractor as and when they are required during the term of the contract."

"The contract shall be subject to the standard terms and conditions, a copy of which is attached thereto..."

14 Attached to this letter were what were described as "NOTES" which stated as follows:-

15 2 "(1) You will be responsible for your own tax affairs. Kerry Foods will be making returns to the Revenue of all payments made to you. These payments will be made gross.

16 (2) You will not be an employee of Kerry Foods, you will be an independent contractor. This has implications in the area of employment legislation and from the point of view of injury or health and damages sustained or caused while you are providing services under the general terms and conditions to KerryFoods".

17 Clauses 2 to 9 inclusive were as follows:-"

(2) Retention of services

18 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 product at such venues within the area as Kerry Foods may from time to time 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. The demonstrator shall in such an event arrange for the service to be provided by a third party or by a servant or agent of thedemonstrator PROVIDED ALWAYS that any such third party, servant or agent shall first have been approved by Kerry Foods and shall agree to perform the service on terms and conditions which are these terms andconditions.

(3) The performance of functions

19 The demonstrator shall use his/her best endeavours to promote and/or demonstrate and/or merchandise the product to the best advantage of Kerry Foods and shall at all times, while performing his/her functions hereunder, act in the best interest of Kerry Foods. The demonstrator shall at all times be courteous towards customers or potential customers of Kerry Foods.

(4) Proper dress

20 The demonstrator shall present himself/herself in a 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 andshall at all times present himself/herself in a manner that befits a demonstrator/merchandiser/promoter of food products.

(5) Punctuality

21 The demonstrator shall punctually attend at...