EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
EMPLOYEE, UD1621/2011
-claimant MN1675/2011
WT640/2011
against
EMPLOYER
-respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms O. Madden B.L.
Members: Mr. R. Murphy
Ms P. Ni Sheaghdha
heard this claim at Naas on 30th January 2013
and 27th March 2013
Representation:
Claimant: In person
Respondent:
Background:
The claimant worked as a sales person/agent for the respondent. The claimant contends that he was employed as a PAYE worker. The respondent wanted to change his employment position from PAYE to self-employed agent. He was not willing to change his position. The respondent made his position redundant. The company employed a self-employed agent within 6 weeks of his dismissal.
The respondent contends that the claimant was not dismissed unfairly but that his position was made redundant.
The respondent representative opened their case: The claimant replied to an advert for a position as a self-employed sales agent. The claimant attended an interview in late September 2009. The claimant raised concerns about being a self-employed worker so it was agreed that he would be a PAYE worker for three to six months. Their position is that the claimant did sign an agency agreement. The role of an employee was at some point made redundant. At some point in time they wished him to revert back to his position as an agent.
In opening the claimant contended that he agreed a position with the company to work for a set amount of money basic plus a company car and phone. He asked if the position was a PAYE position and they confirmed that it was so he agreed to the proposal.
Respondent’s case:
The Tribunal heard evidence from the managing director of the respondent. The company sells maintenance products to hotels, hospitals and garages. There are two employees in the company and also seven self-employed sales agents (SA’s).
He is also MD of a sister company (CBP) and CBP has thirteen employees and seven self-employed sales agents (SA’s).
Towards the end of 2009 they placed an advert in a local paper and the claimant replied to the advert and sent his CV. The claimant attended an interview. The claimant expressed concerns that the job being advertised was a self-employed position and the MD told him that it was the way that they carried out their business. They left the situation as it stood. One week later he talked to the claimant again.
They agreed to put a temporary position in place that they channelled through the sister company and the temporary position was as a PAYE worker.
Their intention was to have a “typical agency agreement” in place with the claimant and they gave a copy of an agency agreement to the claimant in October 2010. The claimant did not sign the agreement but it was a “handshake agreement” and the PAYE agreement was introduced as a “soft landing”, “temporary” situation, and would change to the self-employed agreement; however there is no document to copper-fasten the self-employed agreement.
They had a meeting in or around May 2010 with the claimant because they needed to get the situation “back on track” so that the claimant would be self-employed. They adjourned the meeting for a week. They did agree to extend the period of time the claimant was to be employed as a PAYE worker because the claimant requested this and the company were anxious to keep him on due to his experience in sales. They extended the time up to September 2010, when they met the claimant again. The witness said that they again met in December.
The claimant told them that he was not prepared to regularise the agreement to be self-employed. They wrote to the claimant informing him that his position was redundant.
There was correspondence between the parties up to a letter dated 31 March 2011:
“Unfortunately as discussed in previous meetings the position of sales representative employed by [the respondent] has become redundant as a result of the company’s decision to move the sales position for Dublin East to that of a contract of a self employed agent in line with our nationwide business model. As you will remember, the position which you applied was for a self employed agency person. (see copy of advertisement enclosed)
Following the interview process we discussed and agreed that [the respondent] would employ you for a trial period of six months and thereafter review the position with a view to it reverting back to the intended self employed role.
During the following monthly meetings we discussed numerous aspects of the business which were to assist you with the forthcoming transition to the self employed role. In the May meeting we directly discussed the timing of your take on the intended position however you again made your case for an extension of the trial period.
At our meeting of 3rd June 2010 we confirmed that we were in a position to grant your request for an extension of your probationary period for a further period whilst emphasising a number of points which you could concentrate on in order to help fund the fund the immanent (sic) self employed status.
Again at the end of September we discussed the fact that our auditors had advised us that the position as an employed sales representative with (the respondent) was redundant and we had to begin the transition to the originally intended status.
Even though we have had numerous meeting(s) on this topic and presented you in early December, a detailed staged method of making the transition, you have failed to accept our proposal for carrying on our business as according to our original plan, which would offer you an alternative livelihood.
In view of this we invite you to attend a meeting in the office to discuss methods of rectifying the current position. Therefore please contact (X) or myself in order to arrange a suitable time.”
Another letter dated 09th May 2011, was opened to the Tribunal:
“further to our conversation last Wednesday it is with regret that you deemed yourself not to be in a position to accept our proposal to be a self employed agent. As already outlined the current position is now redundant and therefore please find enclosed your p45 as requested.
…………………………………”
Claimant’s case:
The Tribunal heard evidence from the claimant. He explained that he saw an advert in a local paper sometime in August/September 2009. A few days later he met the MD and had a conversation. The MD told him that the job was a self-employed position. He told the MD that he was not interested in a self-employed position. He got a phone call a few days later from the respondent asking him to consider taking the job and again repeated that he was not interested in being self-employed.
At some point in time in conversation with the MD he told MD that to take the job he wanted he would require a salary of €30k, a van and a company phone and the MD said to “leave it with me”. A few days later the MD phoned him and said to come to his office at a given time because he had a training day for reps (sales representatives) starting.
MD offered him €27.5k plus a van, a phone and a fuel card. The claimant accepted the position he says as an employee. He commenced employment and this continued until the following summer. It was suggested to him that he would change from being an employee to being self-employed. He had a meeting in or around May 2010. He met MD and Mr. S and they wanted him to be on “an agency type agreement”. He had always told them that he did not want to be self-employed. He started getting letters from the respondent suggesting that he changeover to be self-employed.
At some point circa March 2011 he wrote to say that he did not want to change his employment from being a full time PAYE worker to that of a self employed agent. The respondent said that “The position was redundant”, and thanked him for the work and left. He understood that some six weeks after he had left they employed a self-employed agent
Determination:
The claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, was withdrawn from the outset.
The claim under the Organisation of Working Time Act, 1997, was withdrawn from the outset.
The claim under the Unfair Dismissals Acts, 1977 To 2007, succeeds. The Tribunal are not satisfied that the claimant’s employment was terminated due to redundancy because the role of a sales person was not redundant. The alternative offer to the claimant was not reasonable. The Tribunal determines that compensation be the most appropriate remedy and awards the claimant the sum of €6,000.00 as compensation, this being just an equitable having regard to all the circumstances.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)