UD1699/2013

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD1699/2013

CLAIM(S) OF:                                                                                                       

Robert Forde - claimant                                                            

against

Newspread Limited - respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Mr. P.  Wallace

Members:     Mr. W.  O'Carroll

                     Ms H.  Murphy

heard this claim at Ennis on 23rd April 2015

Representation:

_______________

Claimant(s) :        Mr Thomas Wallace O’Donnell instructed by Cahir & Company, Solicitors,  

                             36 Abbey Street, Ennis, Co. Clare

Respondent(s) :   Fanning & Kelly, Solicitors., 2 Hatch Lane, Hatch Street, Dublin 2

Preliminary Issue

The respondent is a newspaper distribution company delivering publications countrywide. A preliminary matter arose at the outset of the proceedings. The respondent’s representative stated that the claimant was employed as an independent contractor on a contract for service and was not an employee of the respondent company. In that regard a copy of a contractor’s agreement between the parties was opened to the Tribunal.

The Tribunal heard sworn evidence from the claimant that he was engaged by the respondent to deliver newspapers in the Co. Clare region for approximately 27 years. He had to collect the newspapers at a set time daily (5.30) and was given a list of shops to where he had to make deliveries. He delivered the newspapers to shops in Inagh, Ennistimon, Lahinch and Liscannor. He was paid €120 per day by the respondent. He provided his own vehicle and was responsible for taxing, insuring and fuelling the vehicle. He was registered for VAT and reclaimed the VAT for diesel expenses incurred. If he was unable to carry out the deliveries he had to provide relief cover, but this person had to be approved by the respondent.

He was paid directly into his bank account. He was not provided with payslips or a P60. His accountant looked after his tax affairs and calculated his VAT liability. He did not receive any holidays though he believed he had an entitlement to holidays. He accepted that he made deliveries for other newspapers groups and was paid separately for those deliveries.

He believed that he was an employee of the respondent. He could not confirm to the Tribunal what rate of PRSI he paid. He described it as a self-employed stamp. Copies of contractor’s invoices were opened to the Tribunal. The claimant gave evidence that he did not generate the invoices and they were generated by the respondent.

Determination on Preliminary Issue

The Tribunal carefully considered the evidence adduced on the preliminary issue of the claimant’s employment status.

Based on the evidence adduced the Tribunal is satisfied that the claimant was employed under a contract for service. In arriving at this decision the Tribunal in particular notes that the claimant provided and fuelled his own vehicle. He also taxed and insured his vehicle. He was registered for VAT. His accountant looked after his tax affairs and his income tax was returnable at the end of each year. He did not receive holidays and did not seek to be paid for holidays. He had a service agreement with the respondent and at the same time had a service agreement with other newspaper groups.

Taking the above circumstances into consideration the Tribunal is satisfied that the claimant was not an employee but was self employed under a contract for service. Accordingly the Tribunal declines jurisdiction.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)