FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : TONY BYRNE (REPRESENTED BY D.P. BARRY & CO. SOLICITORS) - AND - VIANO TOLENTIN (REPRESENTED BY PHILIPPINE CONSULATE) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal against Rights Commissioner’s Decision r-065661-wt-08.
BACKGROUND:
2. A Rights Commissioner hearing took place on the 5th March 2009, and a Decision was issued on the 4th November 2010.
The Employer appealed the Decision of the Rights Commissioner to the Labour Court on the 13th July 2010, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 28th September 2011.
DETERMINATION:
This matter came before the Court by way of an appeal by Tony Byrne against the Decision of a Rights Commissioner in a claim taken by Viano Tolentin under theOrganisation of Working Time Act, 1997.
The only point taken on behalf of Mr Byrne was that the claimant was engaged as a share fishermen and was engaged in a joint venture with the other members of the crew of a fishing vessel. On that account it was submitted that the relationship between Mr Byrne and the claimant was not one of employment and that the Court had no jurisdiction to investigate his complaint.
The claimant did not attend the hearing although he was represented.
The question of whether the claimant was engaged under a contract of service or under a partnership agreement is essentially one of fact. The uncontested evidence before the Court was to the effect that the claimant was a share fisherman. On well-settled authority a share fisherman is not employed under a contract of service but under a partnership agreement. In this case the Court must determine that the claimant was not employed by Tony Byrne under a contract of service. Consequently neither this Court nor the Rights Commissioner can entertain his claim.
Signed on behalf of the Labour Court
Kevin Duffy
21st October, 2011______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.