Labour Court Database __________________________________________________________________________________ File Number: CD91509 Case Number: LCR13506 Section / Act: S20(1) Parties: PETER GILBOURNE T/A EUROTERM IRELAND - and - A WORKER |
Claim by the worker for the payment of monies allegedly owed to him by the Company.
Recommendation:
5. It seems clear to the Court that the work done by the claimant
was subject to the direction and under the control of the employer
and therefore it is satisfied that he was a worker.
In those circumstances the Court recommends that he be paid the
sum of £1,425 being the amounts claimed less the commission about
which the Court has some doubt.
Division: Mr O'Connell Mr Keogh Mr Devine
Text of Document__________________________________________________________________
CD91509 RECOMMENDATION NO. LCR13506
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 20(1), INDUSTRIAL RELATIONS ACT 1969
PARTIES: PETER GILBOURNE T/A EUROTERM IRELAND
(REPRESENTED BY P.J. O'DRISCOLL AND SONS, SOLICITORS)
and
A WORKER
SUBJECT:
1. Claim by the worker for the payment of monies allegedly owed
to him by the Company.
BACKGROUND:
2. The worker concerned commenced employment with the Company on
the 10th June, 1991. He was dismissed on 10th July, 1991. He
claims that he is owed a total of £1,715 by the Company in respect
of arrears of wages, commission, car allowance and payment in lieu
of notice. The Company has rejected the worker's claim. The
worker referred the issue to a Rights Commissioner for
investigation but the Company objected to such an investigation.
The worker subsequently referred the dispute to the Labour Court
under Section 20(1) of the Industrial Relations Act, 1969 and
agreed to be bound by the Court's recommendation. The Court
investigated the dispute on the 18th October, 1991.
WORKER'S ARGUMENTS:
3. 1. The worker concerned was employed as a sales manager with
the Company. His contract of employment stipulated the
following:
1. Option to buy into the Company in 1992.
2. As from 10th June, 1991 basic payment to him of £600
per month by standing order plus commission of 20%
of margin.
3. Car allowance i.e. - mileage in relation to business
for Euroterm Limited.
4. Paid as agent - the Company is not responsible for
tax, social welfare etc.
5. The Company will guarantee stock, terminals, p.c.'s
etc.
6. Job description - Sales manager of Euroterm Ireland.
2. To date the worker has not received his salary, commission
or car allowance. The standing order (signed by Mr.
Gilbourne) in respect of salary which was paid into his
account on the 1st July, 1991 was withdrawn by the Company on
the 2nd July, 1991 leaving the worker's bank account with an
overdraft and unnecessary bank charges. The worker requests
the Court to recommend that the Company immediately pay him
the outstanding amount of £1,715.00.
COMPANY'S ARGUMENT:
4. 1. The worker concerned did not enter into a contract of
service either with Mr. Gilbourne t/a Euroterm or Euroterm
Ireland. He was not an employee of either Mr. Gilbourne t/a
Euroterm or Euroterm Limited, within the meaning of the
Industrial Relations Acts, 1946 to 1990. The worker was
employed as an independent contractor under, contract of
service. The worker is not owed monies as claimed by him,
either by way of salary or car allowance. He is not owed
money by way of commission. While his contract of service
provided for the payment of commission at 20% of the net
profit margin on sales it was an implied term of the contract
of service (and understood by the parties) that such
commission would only be paid in respect of sales made to
existing customers. Any sales made by the worker during his
period of employment were made to existing customers. He is
not owed money in lieu of notice as he himself terminated the
contract of employment.
RECOMMENDATION:
5. It seems clear to the Court that the work done by the claimant
was subject to the direction and under the control of the employer
and therefore it is satisfied that he was a worker.
In those circumstances the Court recommends that he be paid the
sum of £1,425 being the amounts claimed less the commission about
which the Court has some doubt.
~
Signed on behalf of the Labour Court
John O'Connell
______________________
17th December, 1991 Deputy Chairman.
T.O'D./J.C.