McAuliffe v The Minister for Social Welfare

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 01 January 1995
• Neutral Citation: 1994 WJSC-HC 3507
• Docket Number: [1994 No. 78 Sp],No. 78 Sp/1994
• Court: High Court
• Date: 01 January 1995

MCAULIFFE v. MIN SOCIAL WELFARE

IN THE MATTER OF THE SOCIAL WELFARE

(CONSOLIDATION) ACT, 1993 ON THE APPLICATION

OF TONY McAULIFFE

BETWEEN

TONY McAULIFFE

APPELLANT

AND

THE MINISTER FOR SOCIAL WELFARE

RESPONDENT

1994 WJSC-HC 3507

No. 78 Sp/1994

THE HIGH COURT

Synopsis:

EMPLOYMENT

Class

Contractor - Wholesaler - Newspapers - Distribution - Method - Agreements with individual distributors - Whether individuals employed by wholesaler on contracts of service or contracts for services - Social Welfare (Consolidation) Act, 1993, s. 271 - (1994/78 Sp - Barr J. - 19/10/94) [1995] 2 I.R. 238 [1995] 1 ILRM 189

|McAuliffe v. Minister for Social Welfare|

WORDS AND PHRASES

"Contract for services"

Wholesaler - Newspapers - Distribution - Method - Agreements with individual distributors - Whether individuals employed by whole saler on contracts of service or contracts for services - (1994/78 Sp - Barr J. - 19/10/94) [1995] 2 I.R. 238 [1995] 1 ILRM 189

|McAuliffe v. Minister for Social Welfare|

Citations:

SOCIAL WELFARE (CONSOLIDATION) ACT 1993 S271

1 Judgment of Mr. Justice Barr delivered the19thday of October, 1994.

2 The appellant is a wholesale distributor of certain daily and Sunday newspapers. He employes a number of persons to deliver the papers to retail shops and other such outlets. The area of his business includes the province of Leinster and two of the persons with whom he has contracted to deliver newspapers in that area are Mr. Patrick Plunkett and Mr. John Weir.

3 The appellant's claim is by way of appeal pursuant to Section 271 of the Social Welfare (Consolidation) Act, 1993 against the decision of the Appeals Officer made on 3rd December, 1993 and notified to the appellant on 7th December, 1993.

4 The essential facts are not in dispute and are as follows:-

5 1. Mr. Plunkett and Mr. Weir contracted with the appellant to deliver newspapers on his behalf in the Leinster area.

6 2. Mr. Plunkett and Mr. Weir were engaged by the appellant six or seven days per week in the case of Mr. Plunkett and five days per week in the case of Mr. Weir and were paid monthly against invoices submitted by them to the appellant. The agreed rates of remuneration were between £34 and £50 per run per day.

7 3. Messrs. Plunkett and Weir each owned their own delivery vehicles and were responsible for all outgoings including tax, insurance, repairs, fuel and depreciation in respect of them.

8 4. It was envisaged by the respective contracts that Messrs. Plunkett and Weir would act as drivers of their respective vehicles, but with a right to provide substitute drivers acceptable to the appellant when necessary. In that event the payment of relief drivers was the responsibility of the contractors. Mr. Plunkett has in fact provided substitute drivers on a few occasions.

9 5. The appellant was not obliged to provide Messrs. Plunkett and Weir with any particular deliveries or with deliveries on any particular days but in fact both were provided with regular deliveries.

10 6. Messrs. Plunkett and Weir were free to carry goods for any other person, both when not engaged on deliveries for the appellant and in conjunction with the delivery of newspapers for him, subject only to an embargo on the delivery of newspapers for any other supplier while engaged in deliveries for the appellant.

11 7. Mr. Plunkett is registered for Value Added Tax and invoiced the appellant for and was paid and remitted Value Added Tax on his charges. Mr. Weir is not registered for such tax as his turnover is less than the statutory threshold. Messrs. Plunkett and Weir both made income tax returns as self-employed persons.

12 8. Messrs. Plunkett and Weir are responsible for damage, destruction or loss of goods carried for the appellant and for losses caused by any delays.

13 9. The relationship between the appellant and Messrs. Plunkett and Weir was regulated orally until 12th February, 1993 and thereafter by agreements in writing which confirmed the terms of the oral arrangements.

14 10. Mr. Weir was in the direct employment of the appellant until 30th March, 1991 on which date his employment was terminated. He had driven the appellant's vehicle until his employment was ended and after that date he used his own vehicle which he purchased from the appellant. The latter paid Value Added Tax on the sale of this vehicle to Mr. Weir.

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