EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Colm Butterly - claimant
UD148/2013
against
Patrick Butterly & Sons Limited (In Receivership)
Patrick Butterly & Sons (Farms) Limited (In Receivership
- respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O'Leary B L
Members: Mr R. Murphy
Ms M. Mulcahy
heard this claim at Dublin on 9th June 2014
Representation:
_______________
Claimant(s) : In Person
Respondent(s) : Ms Kiwana Ennis BL instructed by Gartlan Furey, Solicitors, 20
Fitzwilliam Square, Dublin 2
Determination
The claimant in this case informed the Tribunal that he owned the shares of a company that owned the shares of the respondent in this case. Some time previously he had purchased the entire shareholding in the company and these shares were then held by another company which he owned. He had worked for the business all his working life. He had secured finance for the business and given the provider of that finance authority that in the event of his default on the terms of the provision of the finance, that provider could appoint a receiver over the assets of the company. There was a default and a receiver was appointed by the finance provider. Shortly after this appointment and while the claimant was absent from the jurisdiction the claimant was dismissed. The claimant has appealed this dismissal.
The respondent claims that the claimant was not an employee and is not entitled to the protection of the Unfair Dismissals Act 1977 to 2007 and therefore the Tribunal has no jurisdiction to hear the matter.
The Tribunal in determining the issue in this case considered the position of the claimant within the company. The claimant was the Managing Director of the company. In addition he controlled the management of the company during his service with the company. The definition of employee given in the 1977 Act is “….. an individual who has entered into or works under a contract of employment …”.
In this matter the claimant was the owner of the whole equity of the company. It is true that he would have had separate legal personality to that of the company, however, he had full control over the company in relation to all matters including the hiring and firing of staff and he was not subject to any other persons control within the company. One of the essential tests in deciding if a person is an employee or not is “the control test” i.e. “can he be told what to do and when to do it”.
This test has always remained an essential part of defining whether a person is an employee or not. In modern times this test is still important although with the increasing expertise of employees its importance has been somewhat blurred but it is still an essential element of any contract of employment. During his period of control of the company he was the sole authority in the company and he made all the decisions and he was not answerable to anyone else. In the circumstances he could not be considered an employee of the company and therefore not an employee for the purposes of the Unfair Dismissals Acts.
It could be argued that when the receiver was appointed to the assets of the company the claimant was no longer in control of the company and then became an employee. In the circumstances of this case he would not have had the requisite service for the purposes of the legislation to entitle him to make an appeal. However a receiver is appointed over the assets of the company rather than the company itself and quite obviously the receiver decided that he did not require the services of the claimant.
In the circumstances the Tribunal must decide that because the claimant was not an employee it has no jurisdiction to hear the case.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)