EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
John Power, - Claimant 1 (JP) UD802/2014
David Bevan – Claimant 2(DB) UD813/2014
Against
Shannon Foynes Port Company - Respondent
Under
UNFAIR DISMISSALS ACTS 1977 TO 2015
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. Wallace
Members: Ms. M. Sweeney
Ms. H. Kelleher
heard this claim at Limerick on 29th September 2015 and 3rd May 2017 and 4th May 2017
Representation:
Claimant: Mr. John Wilde Crosby B.L., instructed by Maurice Power Solicitors, Lord Edward Street,
Kilmallock, County Limerick
Respondent: IBEC, Gardner House, Bank Place, Charlotte Quay, Limerick
Respondent’s case:
The respondent is a Sea Port Management Company and the claimants were engaged as divers.
The engineering and port services manager JC gave evidence that the both claimants were commercial divers who were called to the port, mainly to remove fouls at the dock gates or free any obstructions that occurred. It was a long standing arrangement in excess of 30 years.
JP was the main contactor but would always require a second person for each dive. The respondent would require his services somewhere between 10-18 times a year. Each dive was valued at €750.00 and was done through a purchase order. The respondent had no involvement in the claimant’s tax affairs. There was never a question of holidays or time off and if JP was not available he would have someone else do the job.
JC told the Tribunal that there were four shipping agents in the estuary and the claimants were free to work for any of them. They provided their own equipment and were dealt with the same as other contractors/subcontractors that the harbour used.
In 2007 new Health and Safety regulations meant that procedures had to be formalized. All contractors had to be vetted and brought up to standard. An approved contract list was drawn up with tax clearance, insurance, safety certificates, training certificates etc., and during a risk assessment of all operations concerns were raised about the divers. JP did not have proper diving regulation certificates or insurance and was limited to 10 meter dives following a medical examination.
Conversations between the parties were informal from 2008 to May 2013 and the long standing agreement continued but with some changes to the payment structure. There was never any confirmation of insurance cover by JP and eventually JC said that the respondent had to bite the bullet and find another contractor who complied with all regulations.
ES Financial Controller explained the procedures with invoicing, withholding tax and payments to the Tribunal.
Claimant’s case:
JP told the Tribunal that he began work in the harbour in 1971, AC asked him to take the job and while JP was not interested in a full time position he agreed to do the diving on a permanent basis. He was on call 365 days a year and had to be at the port within 30mins of any incident. At a later stage a new engineer said that a stand by diver was a necessity so he recommended claimant 2 (DB) who began with him in 1982. They both had good working relationships with everybody. There was no question of insurance; the harbour had its own insurance. He took a medical and was limited to 10 meter dives because of his age.
JP said that he always considered himself an employee, he had worked for the respondent for 40 years and was totally committed to the job and the port. There was no paperwork done or signed when AC asked him to take the job, he sent in his invoices and was paid at the end of each month. He did concede to doing other “bits and pieces of work” but said that the harbour had to be his No 1 and they had that hold on him.
DB told the Tribunal that he was asked to come in as a stand-by diver. He never heard anything about insurance or qualifications. He, like JP, sent in an invoice and was paid. During a period of illness he had someone else stand in for him, he still invoiced the respondent and paid his stand in separately. He said he never considered himself as a sub-contractor but didn’t make any enquires as things were “ticking along nicely” and he might be told if he didn’t like it he could lump it.
Determination:
The Tribunal notes both claimants long and unblemished records working with the respondent and the respondent’s lack of consideration for the long years of service but relevant facts and realities must be looked at:
- The claimants were registered for VAT and were responsible for their own tax affairs and accounts were filed as that of a business.
- The claimants were not entitled to holiday or sick leave and were responsible for finding and paying replacements during such absences.
- The claimants were not required to personally provide the service and could delegate the work to a third party of their choice.
- There was no interaction with the management of the port and as a heavily unionised entity nothing seems to have been raised.
Having considered the reality of how the relationship was worked on a day to day basis between the parties, the Tribunal is satisfied that the claimants were employed as independent contractors and the contract was one for services.
The Tribunal therefore determines that their claims must therefore fail and are hereby dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)