EMPLOYMENT APPEALS TRIBUNAL
APPEALS OF: CASE NO.
Rafal Synal -appellant UD175/2013
PW106/2013
TE32/2013
against the recommendation of the Rights Commissioner in the case of:
Publicity Mailing -respondent
Under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
PAYMENT OF WAGES ACT, 1991
TERMS OF EMPLOYMENT (INFORMATION) ACT, 1994 AND 2001
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. D. Mac Carthy S. C.
Members: Mr M. Noone
Mr. P. Woods
heard this appeal at Dublin on 25th February 2014
Representation:
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Appellant: Mr Mark Kavanagh, Independent Workers Union, Suite 6,
Fulcrum Offices, 86 Amiens Street, Dublin 1
Respondent: Aidan Phelan, Peninsula Business Services (Ireland ) Ltd,
Unit 3, Ground Floor, Block S, East Point Business Park, Dublin 3
Background
The appellant is one of three former employees appealing the recommendation of the Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007, Payment of Wages Act, 1991 and the Terms of Employment (Information) Act, 1994 And 2001.
In this case the appellant’s acted as leaflet distributors who delivered leaflets door-to-door. The Rights Commissioner found that they were employed under a contract for service and therefore he had no jurisdiction to hear the case. A test case by the Scope section of the Department of Social Protection found that the leaflet distributors were self-employed. An Equality Tribunal decision also found that they were self-employed.
The system in operation was that a lead distributor/contractor collected the material from the respondent company and transported the material and distributors to locations for distribution. The appellants could choose to use their own transport if desired. They submitted an invoice to the respondent company for payment of their labour. The respondent company produced this invoice on their behalf for a small fee and this seems to have suited them. The lead contractor collected the invoices and submitted them to the respondent company on their behalf. They were responsible for their own tax. They were paid per day and not by volume.
If they did not appear for a day this did not affect any opportunity for future work. They could also send someone else on their behalf. The lead contractor could replace them if he so desired.
Determination
The Tribunal considered five tests in relation to this case; Privity of Contract, Control, Integration, Mutuality of Obligations and Enterprise.
Privity of Contract refers to the connection between the parties. Other than the invoice to the respondent and direct payment from the respondent, the parties had no other connection.
Accordingly, there was no direct control by the respondent company of the distributors.
If there is no privity there is no integration.
There was no obligation to provide work or to do any work.
Finally the Enterprise test is where an individual can vary the level of profit by their own enterprise. The distributors were paid per day and could not by their efforts increase their profit. This test points to the main contractor as being self-employed. If he is self-employed it is anomalous that his employees are employed by someone else.
Main Contractor – the employee’s privity is with the main contractor who hires them and tells them what to do. If there is an employer, of which the Tribunal is not making a finding, the evidence seems to point to the main contractor.
The appeals of the Rights Commissioner Recommendation under the Unfair Dismissals Acts, 1977 to 2007, the Payment of Wages Act, 1991 and the Terms of Employment (Information) Act, 1994 and 2001 fail.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)