UD2303/2011,MN2392/2011

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                               CASE NO.

EMPLOYEE – claimant                                                                                UD2303/2011      

                                                                                                                        MN2392/2011

Against

EMPLOYER – respondent

Under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Ms P. McGrath B.L.

Members:        Mr. B. Kealy

Mr N. Dowling

heard this claim at Dublin on 17th April 2013 and 1st November 2013

Representation:

_______________

Claimant(s):                 In person

Respondent(s) :           Mr Paul Twomey BL, instructed by:

                                    McKeever Rowan, Solicitors

5 Harbourmaster Place, I.F.S.C., Dublin 1

The determination of the Tribunal was as follows:-

The claimant contended that he was employed by the respondent from 8^th February 2010 until 16^th August 2011. He lodged his form T1A with the Tribunal on 7^th December 2011. This case was heard together with ud91.12, and pw536.11 & pw537.11.

The Tribunal has carefully considered the evidence adduced. The claimant worked with his father for the respondent. They are all Polish nationals. The respondent was a fluent English speaker with a job in insurance who also undertook work as an official translator for a construction company (Company B) with responsibility for all ordering and directions made in English. The claimant’s father and the respondent agreed to work more closely and to the exclusion of Company B, which ultimately closed by reason of going out of business.

The parties initially agreed that the respondent would employ the claimant’s father to carry out the works on construction contracts which the respondent was responsible for negotiating and procuring. This arrangement subsisted during the course of 2009 and 2010 and there was an argument about whether the employment relationship might also have operated in 2008. The claimant was brought into the business by his father to work with him on construction sites. He worked for the respondent during the summer of 2009 and returned in February 2010.

The respondent’s evidence is that by the end of 2010 the business relationship was not working for her. As she had to ensure that both the claimant and the claimant’s father’s wages, tax and PRSI was being paid and as she had to supply materials the net result was that there was no profit in this venture for her and that her own accountant told her she needed to stop conducting this failing business. The respondent says that in the circumstances where she could no longer take full responsibility for negotiating these building contracts that she and the claimant’s father agreed to change the nature of the relationship.

She terminated the claimant’s employment on 29^th November 2010 as there was not much work for him and she knew she was going to cease being an employer. The claimant and the claimant’s father were issued with P45s in January 2011.

During the course of 2011 it is accepted by both the claimant’s father and the respondent that they were paid periodic lump sums into their respective bank accounts in equal amounts for a job carried out in Booterstown. The respondent’s evidence was that the onus would be on both parties to organise their own financial affairs with regards to tax, PRSI and vat deductions and payments. It would appear that the expectation also included that the claimant’s father would be recompensing the claimant who worked alongside him out of the lump sum he received.

The claimant gave evidence that he worked for the summer of 2009 and then returned to Poland to complete his studies. He returned in February 2010. A P45 was issued in January 2011. He submitted payslips for March to December 2010. He worked on sites in 2011. He agreed that his father gave him money but he was vague as to what job the money was paid for. He contended that the respondent gave him money once during this time.

The Tribunal finds that the claimant was not employed by the respondent in 2011 and accordingly did not have sufficient service in order to bring a claim under the Unfair Dismissals Acts, 1977 to 2007, and accordingly the Tribunal does not have jurisdiction to hear the claim under that Act. The Tribunal awards the claimant €450.00 in respect of one week’s pay under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, arising out of the termination of the claimant’s employment in November 2010.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)