EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Vivekanand Saulick UD1644/2013
against
Jonathan Doherty T/A Bargain
and
Jonathan Doherty T/A Bargain
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr R. Murphy
Mr J. Maher
heard this claim at Dublin on 6th October 2014
Representation:
_______________
Claimant: In person
Respondent: PB Cunningham & Company, Suite 212, The Capel Building, Marys Abbey, Dublin 7
The Tribunal has carefully listened to the evidence adduced. The claimant states that he was forced to hand in his resignation on or about the 5th day of February 2013 from an employment he says he has held for a period of at least one year preceding that date.
The respondent’s witness JD indicated that he was a partner in a registered business known as “Bargain” which was primarily dealing with the marketing and distribution of cleaning products brought in from the United Kingdom.
The claimant has made the case, without any corroborating evidence, to the effect that he worked as a part-time mechanic and an overnight security guard for JD in the business park premises wherein the business operated out of. The claimant indicated that he also had a job with a convenience store and that when he finished this job he would turn up at the business park premises for the purpose of assisting in car repairs and then he was expected to operate as a security guard from 8pm to 3am.
JD gave evidence to the effect that the claimant’s presence on the premises at night was by reason of an agreement whereby the claimant needed accommodation and that JD, in conjunction with other interested parties (including the principle tenant) had agreed to allow the claimant to stay overnight in the premises as he and his dog added a valuable sense of night time security at the premises.
The claimant says that JD had agreed that he would be paid €300 for each week of night time security work he performed and €300 for each week of mechanical assistance he gave to the garage (wherein it is noted that JD’s interest was not established). In effect, therefore, the claimant said he was due a salary of up to €600 per week and that JD himself had agreed to pay this sum.
In evidence, the claimant said he was never paid €600 per week and that, in fact,in the 12/13 month period that he was living on the premises that he might have received payments totalling in and around €540 which sum could not constitute a salary and may or may not have amounted to an ex-gratia lump sum.
The Tribunal finds it hard to understand how an individual would stay in a purported place of work for a twelve month period without receiving any remuneration whatsoever. The claimant was not there under any form of duress nor was he in any way beholden to JD or any of his colleagues.
The Tribunal finds that the most likely scenario is that the claimant was not an employee of JD or anyone associated with him but was being allowed to live in the warehouse premises for free as his presence provided night time security. It may well have been that, from time to time, the claimant was paid sums of money for want can only be described as “a nixer”, such as for example,the weekly market stall he says he operated on JD’s behalf for a few weeks. These payments were not apparently subject to tax and or PRSI and do not form any contract of employment (implied or otherwise) entered into by the parties.
The claimant has not established that a legally recognisable relationship of employment existed and the claimant cannot therefore claim the protection of the Unfair Dismissals legislation and the claimants claim fails for want of jurisdiction.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)