EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF:
| CASE NO. |
Employee - claimant
| UD382/12 RP306/12MN332/12 |
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 E. Kearney BL
Members: Mr T. L. Gill
Ms H. Henry
heard these claims at Galway on 3 October 2013
and 18 November 2013
Representation:
Claimant:
Mr Martin Durack BL, instructed by Ms Sharon Gardner,
C P Crowley & Co, Solicitors, Augustine House,
Merchants Road, Galway
Respondent:
Ms Róisín Bradley, IBEC, Confederation House,
84/86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:-
At the outset of the hearing the claim under the Unfair Dismissals Acts, 1977 to 2007 was withdrawn.
A preliminary issue then arose with the respondent’s position being that the claimant was not an employee of the respondent rather that he was an independent contractor.
Preliminary Issue:
The claimant worked from 1987 with a company in Co. Limerick. This company was taken over by the respondent in May 2008. It was common case that a transfer of undertakings took place on that occasion. At all times the claimant was involved in the sale of washroom products.
It was common case that after the transfer the claimant had a defined territory in North Munster and most of Connacht, he received 60% commission on all sales that he generated, in 2008 prior to the transfer the level of commission was at an annualised rate of around €30,000-00. This was the only remuneration the claimant received from the respondent.
The claimant made all decisions about what sales calls to make and his working hours/days. The claimant was not required to attend sales meetings. The claimant submitted orders obtained to the respondent and was paid on foot of these. The respondent made no deductions in respect of income tax or PRSI. The claimant’s vehicle insurance was paid for by the respondent and he was provided with a mobile phone by the respondent. In the due diligence documents prepared for the respondent as part of the transfer in 2008 the claimant is described as a self-employed contractor.
The claimant’s position was that prior to the transfer he had received, in addition to the terms set out above, reimbursement for fuel. Prior to 2005 the claimant had received a retainer in addition to commission; while the level of this commission was not adduced it was at this time that the 60% commission and payment on submission of invoice was introduced. The sales team had three-monthly meetings. His position was further that prior to 2005 he had received holiday pay and a Christmas bonus, on two occasions, the only times he had been sick, he had received sick pay.
The claimant’s employment was terminated by letter from the general manager, who had met the claimant on 5 August 2011 to break the news face to face, on 22 August 2011.
Determination:
The respondent was not in a position to adduce any evidence from the transferor with whom the claimant had a relationship prior to May 2008. Nevertheless and based on the claimant’s evidence, save for the issue of fuel expenses, there seems to have been little other difference between the arrangements which existed pre and post transfer. The Tribunal is satisfied that the arrangements in place between the claimant and the respondent were those as between the claimant as an independent contractor and the respondent which the claimant was representing. If the claimant had a problem with the arrangements with the respondent then he had an opportunity at the time of the transfer to raise this issue under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003. Equally if the claimant had a problem with the alterations to his terms in 2005 it was open to him to seek redress at that time under the appropriate legislation. Accordingly, the Tribunal is satisfied that the claimant was not an employee of the respondent. It follows that there is no jurisdiction to hear the claims under both the Redundancy Payments Acts, 1967 to 2007 and the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)