FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : MARTIN EARLEY (REPRESENTED BY MICHAEL G.BOHAN & CO. SOLICITORS) - AND - LAURENCE GARDINER (REPRESENTED BY BALLINA CITIZENS INFORMATION CENTRE DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioners Decision WT19399/04/GF
BACKGROUND:
2. Mr. Gardiner, the worker, claims that he commenced employment as a plasterer with Mr. Earley in November 2000 on a full-time basis until his employment was terminated in December 2003. The dispute before the Court concerns a claim by Mr. Laurence Gardiner for payment of Annual Leave and Public Holiday entitlements which, he claims he did not receive during his employment.
- The Employer, Mr. Earley, contends that he himself was an employee of another Company until December 2001 when he became a contractor, so therefore it was not possible for Mr. Gardiner to be employed by him from November 2000. Mr. Earley further contends that he sub-contracted his work and that the worker was not directly employed by him but rather by the sub-contractor.
The Employer side submitted a sworn affidavit, at the Court hearing, confirming that Mr.Gardiner was employed by a third party. Mr. Gardiner refuted the contents of the affidavit.- The matter was originally referred to a Rights Commissioner for investigation and recommendation. His findings and recommendation issued on the 7th October 2004, as follows:
“I am satisfied the respondent company is covered by the C2 category – he employed the claimant. To describe him as a C45 person is simply not good enough to deny him the protection of the Act. I believe he was an employee and should be treated as such. I have come to the conclusion his complaint is well founded and I require the respondent to pay him the outstanding amount of €6000 for the period in question.”
On the 12th November, 2004, the employer appealed the Rights Commissioner’s Recommendation to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the grounds that the claimant was not employed by him and that the award was excessive. A Labour Court hearing took place on the 20th September, 2005.
- The matter was originally referred to a Rights Commissioner for investigation and recommendation. His findings and recommendation issued on the 7th October 2004, as follows:
DETERMINATION:
In a situation where there was a lack of any credible supporting evidence and where many of the parties' statements were wholly contradictory, The Court has been unable to establish sufficient facts to convince it that there was a bona fide employer/employee relationship in existence between November 2000 and December 2003,
The Court, therefore, overturns the Rights Commissioner's Decision and allows the appeal.
Signed on behalf of the Labour Court
Raymond McGee
20th October 2005______________________
JO'CDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Joanne O'Connor, Court Secretary.