EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Forbidden City Limited T/A Translation.ie – appellant UD265/2013
V
Monnie McKayed – respondent
against the recommendation of the Rights Commissioner in the case of:
Monnie McKayed
V
Forbidden City Limited T/A Translation.ie
Under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms N. O'Carroll-Kelly BL
Members: Mr F. Cunneen
Mr N. Dowling
heard this appeal at Dublin on 26th March 2014 and 8th October 2014
Representation:
_______________
Appellant(s) : On First Day:
Mr Brendan Foley BL, instructed by Ms Cliona Bambury
Fahy Bambury McGeever Solicitors
153 North King Street, Dublin 7
On Second Day:
Mr Patrick Jackson BL, instructed by Ms Leanne Locke
Fahy Bambury McGeever Solicitors
153 North King Street, Dublin 7
Respondent(s): In person
This case came before the Tribunal by way of an employer appealing the recommendation of a Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007, ref: r-107835-ud-11/MMG.
The determination of the Tribunal was as follows:-
Preliminary Point:
The Tribunal have been asked to address the status of the respondent’s employment. The Appellant states that his services were provided to them on a contract for services basis. The respondent stated that it was on a contract of services bases and as such he is entitled to bring a claim under the Unfair Dismissal Act.
The respondent commenced working for the Appellant in 2008. He signed various documentation prior to his commencement. That documentation included:
- Declaration of Interests
- Security Clearance form
- Abidance by code of conduct form
- Confidentiality agreement
- Quality standards form.
For the purposes of establishing his employment status the Declaration of Interests form is the most relevant. In that document the respondent agreed not to work for another company operating competitively in the same area as FC translations, unless he declared this fact to company management. The company`s obligations to him were to arrange appointments and to endeavour to maintain sufficient work for him.
It is clear from the evidence adduced by both parties that the respondent did not have an obligation to accept all offers of work and the Appellant does not have an obligation to provide work if none is available. The fact that the respondent did accept all offers of work is neither here nor there. All that is relevant is that he was not under a legal obligation to accept all offers.
In The Minister for Agriculture & Food –V- Barry & Ors the legal test to be applied to all situations where the status of employment is in issue was established. The Tribunal must first establish “that there is a mutual obligation on the employer to provide work for the employee and on the employee to perform work for the employer. If such mutuality is not present, then either there is no contract at all or whatever contract there is must be a contract for service”
The Tribunal find that there was no mutuality of obligation on the grounds that the appellant did not have an obligation to provide work if none was available and the respondent had no obligation to accept offers of work.
On that basis the Tribunal, according to The Minister for agriculture case, does not have to consider the matter further. The Tribunal upsets the Rights Commissioner’s recommendation on the grounds that the respondent provided his services not on a contract of services but on a contract for services.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)