RP611/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                                        CASE NO.

Terry Sweeney                                                                                                            RP611/2013

Against

Tom Cornaly T/A Tom Cornaly

under

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr R. Maguire, B.L.

Members:     Mr T. O'Sullivan

                    Mr O. Nulty

heard this appeal at Mullingar on 30th January 2014

Representation:

_______________

Appellant:         No representation listed

Respondent:   Robert Marren, Robert B Marren Solicitors, Castle Street,

                       Mullingar, Co Westmeath

The decision of the Tribunal was as follows:-

The appellant claimed that his employment as a milkman, began in September 2010, and ended by reason of redundancy on 1^st June 2012. His net. weekly pay was €300.00, an amount he kept out of the delivery round. He initially worked for MC but in March 2010 received a phone call from JB to say MC had stopped operating but asked that the appellant keep the milk-round going until they got someone new run it. The appellant asked for a van and JB arranged one, which came from the respondent. JB brought the appellant to the respondent in September 2010 and told him that the respondent was taking over the round. He continued with his normal practices until December 2012 when he went out sick. He never got payslips but when he went to Social Welfare it became apparent that no contributions had ever been made for him. He filled in a lot of forms, it took a long time but eventually he got insurable weeks but didn’t know how.      

The respondent’s position was that the appellant took over a milk-round that had nothing to do with the respondent initially. He provided a van to the appellant at the request of a large milk supplier JB when the appellant’s former employer ceased to trade. The respondent was an agent for JB and they asked the respondent to get involved with keeping the milk round in operation. The appellant collected and delivered from the respondent’s warehouse, retained 300euro from the takings and gave the balance to the respondent. The respondent told the Tribunal that it was all a shambles from the start.

He was never aware of an arrangement between JB and the appellant for getting milk for personal consumption and nothing ever balanced. The appellant went on sick leave, some of his family members were filling in and the respondent made a request to JB that the milk- round come to an end. The operation was disbanded and JB set it up again, he now employs a new delivery person.  

Determination:

Having carefully considered of the issues in this case, the Tribunal finds that the appeal under the Redundancy Payments Acts, 1967 to 2007, fails. Having heard testimony from the appellant and the testimony of the respondent, the Tribunal was not satisfied that any redundancy situation existed with respect to the appellant who, it appears was never an employee of the respondents but an agent or employee of JB. The appellant took direction from JB and deducted his payments from the money collected from customers of JB. This arrangement preceded the involvement of the respondent, who was not in control of the work done by the appellant. It was not shown that there was an employment relationship between the parties and therefore the claim of the appellant fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)