UD258/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                  CASE NO.

Peter Kearney                                                                                                 UD258/2013

-        Claimant

against

Seel Publishing Limited (In Liquidation) T/A North County Leader

-        Respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:      Mr. D. Mac Carthy S C

Members:       Mr M. Noone

                        Mr P. Trehy

heard this claim at Dublin on 24th March 2014

Representation:

Claimant: In person

Respondent: Mr. Cathal Boland, Drishogue Lane, Oldtown, Co. Dublin

The determination of the Tribunal was as follows:-

Preliminary Issue

The respondent company operated a weekly journal wherein the claimant submitted photographs and articles for publication.

The relationship between the parties commenced on 25^th July 2011.

The Tribunal heard submissions from both parties in respect of a number of issues surrounding the relationship between the parties.

The first issue was whether or not the claimant had sufficient service to bring a claim under the Unfair Dismissals Acts 1977 to 2007. The respondent maintained that the claimant was advised on 26^th June 2012 that the company would cease publishing temporarily and that this event terminated the relationship between the claimant and the respondent. In effect a lay off situation existed and the claimant did not have twelve months continuous service required to bring a claim as set down in the Act.

The respondent also maintained that if the relationship terminated on 26^th June 2012 the claim before the Tribunal was lodged outside of the 6 month time limit set down in the legislation.

Furthermore, the respondent told the Tribunal that the claimant was not an employee of the respondent company but rather a freelance journalist/photographer engaged on a contract for service. The claimant had the discretion to create a story idea, write an article and submit it to the newsdesk. The newsdesk then decided if it would be published. The same process applied for photography. If the article was published the claimant was paid per word. There was never a guarantee that the work would be published which effectively meant there was no guarantee of purchase. The claimant provided his own equipment and the manner of payment was supported by invoices.

The only instruction the claimant was given by the respondent was in respect of “the Clubbers Page”, when the respondent decided which venue the photographer would go to. The claimant was not excluded from submitting work to other publications but the respondent got first refusal.

The claimant told the Tribunal that his relationship with the respondent did not end until 14^th August 2012. Accordingly he had the twelve months required service to submit his claim under the Unfair Dismissals Acts 1977 to 2007.

The claimant submitted a copy of a decision from the Scope section of the Department of Social Protection which deemed him to be employed in a contract of service. However, this decision has been appealed by the respondent company.

The claimant told the Tribunal that he was an employee of the respondent company based on the control test and the integration test. He explained that the respondent controlled where he attended when photographing for “the clubbers page”. This page was essential to the printing of the journal each week and it could not be published without its inclusion. The claimant also felt that based on this he was an integral part of the proper functioning of the journal.

The claimant further explained that freelance journalists normally have the opportunity to negotiate rates but there was no room for negotiation on rates with the respondent company. The claimant was also required to work in the respondent’s offices to provide holiday cover for a period of seven days. Whilst in the office the claimant was addressed over his appearance and provided with a dress code.

Preliminary Determination

During the hearing the Tribunal explained to the respondent that a period of lay off does not break an employee’s employment. The Tribunal does not make a definitive decision on when the relationship ended because it could exercise discretion in the earlier date applied and extend the time limit in the claimant’s favour.

The Tribunal determines that the claimant was an employee of the respondent company for the period of seven days that he worked in the office providing holiday cover. These seven days do not amount to twelve months service.

The Tribunal applied 3 tests, control, integration, and enterprise to decide if the claimant was an employee or self employed.   In relation to control the claimant was free to decide where he could go and what he should deal with. His role was not integrated into the business because there were a number of other freelancers who chose what to do.

On all three tests the Tribunal are of the view that the claimant was self employed.

Based on the above the Tribunal is inclined to view that the claimant was not an employee of the respondent company and therefore the Tribunal has no jurisdiction to hear the case under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)