EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Employee – claimant UD91/2012
RP65/2012
MN738/13
Against
Employer – respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 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 commenced his employment with the respondent on 26th March 2008 and finished his employment on 23rd August 2011. The claimant lodged this T1A form on 7th December 2011.
The Tribunal has carefully considered the evidence adduced. The claimant and the respondent are both Polish nationals. It would appear that the claimant was an experienced construction worker with limited English and the respondent was a fluent English speaker with a job in insurance. The parties met in and around 2008 when the claimant was engaged with a construction company (company B), a company for which the respondent worked as an official translator responsible for all ordering and directions made in English – in effect the respondent appeared to project manage domestic building contracts insofar as there was a requirement to cross the language barrier.
At a date unknown but in the course of 2008 or 2009 the parties 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 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 respondent’s evidence is that by the end of 2010 the relationship was not working for her. The claimant’s work, whilst excellent, was taking much longer than had initially been agreed with the clients.
The respondent gave evidence that as she had to ensure that the claimant’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 agreed to change the nature of the relationship.
The respondent had been asked to finish a building job for a Mr S.M. and a three-way contract was entered into by the parties such that Mr S.M. requested the claimant and respondent to jointly agree to carry out certain renovations to his home in Booterstown for an agreed sum in and around €46,000 inclusive of VAT.
During the course of 2011 it is accepted by both the claimant and the respondent that Mr S.M. paid periodic lump sums into their respective bank accounts in equal amounts. 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 would be recompensing his son who worked alongside the claimant out of the lump sum received.
The son P did give evidence and confirmed that his father did give him money at the time but he was vague as to what job the money was paid for.
Ultimately the relationship between the claimant and respondent broke down and the claimant appears before the Tribunal claiming a number of matters.
The claimant says he was unfairly dismissed in and around August 2011 and that he continued to be an employee of the respondent up until that date and that it was always intended by the respondent and himself that he would continue to be an employee although the agreements reached with customers in the course of 2011 would have indicated that they were both jointly undertaking the projects.
The claimant is also claiming redundancy and the Tribunal must decide whether redundancy is applicable, is it applicable from 25th December 2010 (the date on which the respondent says the acknowledged employer/employee relationship came to an end) or in August 2011 when certainly the parties relationship came to an end for once and for all?
The claimant also brings two matters on appeal from the Rights Commissioners under the Payment of Wages Act 1991 on foot of a complaint presented on the 2nd August 2011 and under the Organisation of Working Time Act 1997 again on foot of a complaint made on 2nd August 2011.
It is regrettable that the Tribunal did not hear the evidence of Mr S.M. as it would have been helpful to hear his view of the contractual relationship that he was entering into with the two parties.
However, that said, the Tribunal has been presented with some very useful documentary evidence which supports the contention that the parties had agreed to change the way they would operate from December 2010 and into 2011.
The Tribunal notes that the claimant’s own letter from the Revenue dated 2013 indicates the claimant was an employee of the respondent in 2008, 2009 and 2010. The letter is silent on 2011 which demonstrates that the Revenue had no knowledge of an employer/employee relationship being in existence in 2011.
The claimant accepts that he got a P45 in early 2011 wherein P45 discloses a termination date of 25th December 2010. It is noted by the Tribunal that the claimant did not look for redundancy at that time.
On balance the Tribunal accepts that the parties did indeed agree to change the nature of their relationship in and around late December 2010 and early January 2011. The parties agreed that they would abandon the employer/employee structure in favour of the joint enterprise or partnership structure. Neither party sought legal advice and both probably placed too much trust in the capabilities, skills and efficiency of the other.
The pay structure put into place by Mr S.M. corroborates the contention that the parties acted as equal partners. Whether this was fair in the circumstances where the claimant was carrying out the lion’s share of the work is something the Tribunal cannot concern itself with. Both parties entered into this arrangement with their eyes open and with a full understanding of the nature of the business.
In concluding, the Tribunal finds there was no unfair dismissal in August 2011. The partnership simply dissolved as the parties fell out.
The claimant was not made redundant in December 2010 as he willingly re-negotiated his status as one of employee to partner. The claimant in effect elected to leave his employment status in favour of the new opportunity. The claim for minimum notice also fails for this reason.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)