UDD1852

For ease of reference the parties are given the same designation as they had at first instance. Hence Mr John Byrne will be referred to as “the Complainant” and CIE Tours International will be referred to as “the Respondent”.

The Complainant submitted his claim under the Acts to the Workplace Relations Commission on 30^thMay 2017.

Background

The named Respondent operates fully escorted coach tour services. It contracts coach companies to supply buses and drivers to operate its services. In 2014 the Complainant was employed by Callinan Coaches Limited to act as a Coach Driver/Tour Operator on behalf of the named Respondent. He claimed he was dismissed in September 2016.

Preliminary Issue

Ms Mairead Carey, Solicitor, Carey, Solicitors, on behalf of the Respondent, raised two preliminary issues. She raised an objection to the Court’s jurisdiction to hear and determine this appeal on the basis that the Complainant had named the incorrect Respondent in his complaint to the Workplace Relations Commission. She submitted that the named Respondent was not the Complainant’s employer and never had been. Ms Carey pointed to the Complainant’s submission to the Court where he recounted how he had worked for a number of different coach companies exclusively on CIE Tours and, at the beginning of the 2014 coach touring season, he began to work for Callinan Coaches Limited.

Secondly, Ms Carey submitted that the claim was out of time.

The Court decided to consider the issue of the employment status of the Complainant as a preliminary issue. The Court made this decision in the interest of efficiency of processtaking account of the Decision of the Adjudication Officer and of the fact that if the Complainant was not an employee of the Respondent within the meaning of the Acts that would be determinative of the appeal in its entirety.

Summary of the Complainant’s Case on the Preliminary Issue

The Complainant told the Court that he had worked in the coach tourism industry since 2000 and had completed his first tour for CIE Tours International in 2004. From 2004 to 2016 he had worked for various coach companies as a Driver/Tour Guide for the Respondent. At the beginning of the 2014 coach touring season, he began working with Callinan Coaches Limited and remained with them until he claims he was dismissed in 2016.

The Complainant alleged that he was unfairly dismissed by the Respondent in 2016, whom he referred to as his “effective employers”. He accepted that his direct employer was Callinan Coaches Limited, however, he submitted that the Respondent controlled and directed him in his duties, he wore a uniform bearing the Respondent’s logo, the Respondent reimbursed his expenses, and he attended training and seminars organised by the Respondent. Essentially, he submitted to the Court that he was employed as a Driver by Callinan Coaches Limited and as a Tour Guide by the Respondent.

Summary of the Respondent’s Position on the Preliminary Issue

Ms Carey maintained that the Respondent was not the Complainant’s employer. She pointed to the fact that the Complainant himself accepted that his employer was Callinan Coaches Limited and prior to that that he had been employed by various coach companies. She said that the Respondent had entered into a framework agreement with these coach companies to drive buses and act as tour guides. The Respondent’s business is based in the US where it employs 85 employees and has 35 Irish-based employees. Ms Carey said that it did not, and never had, employed Drivers/Tour Guides. Initially, it contracted Bus Éireann and Dublin Bus drivers to carry out its touring business. Later, private bus companies were contracted to provide the service. All contracts were devised through public procurement procedures.

Findings and Conclusions of the Court

This is not a case of determining whether the Complainant was engaged on a contractofserviceora contractforservices but whether or not the Complainant was simultaneously employed by two employers to carry out the role as Driver/Tour Guide. If, as contended by the Respondent, he was employed by Callinan Coaches Limited as per the framework agreement it entered into under public procurement procedures then he lacks the necessary legal standing (locus standi) to pursue a claim under the Acts.

During the hearing before the Adjudication Officer at the Workplace Relations Commission, the Adjudication Officer reported that the Complainant had taken unfair dismissal claims against both Callinan Coaches Limited and CIE Tours International. The Complainant disputed this. In a surprising turn of events, the Complainant told the Court that he had not been dismissed by Callinan Coaches Limited in September 2016 and had in fact remained employed by them as a bus driver on CityLink routes until the summer of 2017. However, he maintained that he had been dismissed by CIE Tours International in September 2016 when the Manager of Callinan Coaches Limited informed him that he was no longer acceptable to the Respondent as a Driver/Tour Guide.

Having considered the submissions of both parties the Court is not satisfied that the Complainant has established facts to substantiate his contention that he was employed by the Respondent under a contract of employment as required by Section 6 of the Acts in order to pursue a claim of unfair dismissal under the Act. It is clear that he did spend the majority of his time as a Driver/Tour Guide carrying out tours for the Respondent but that does not entitle him to be considered as an employee of the Respondent. Equally, the Court is satisfied that at all times his relationship with the Respondent was based entirely on the commercial relationship between the contractee (the Respondent) and the contractor (Callinan Coaches Limited).

Furthermore, based on the facts as presented by him, the Court is satisfied that at the material time he was an employee of Callinan Coaches Limited and continued to be so after 6^thSeptember 2016 (the date he claimed that he was unfairly dismissed). Therefore, as he was not dismissed at the time, no unfair dismissal claim can arise.

In conclusion the Court finds that the Complainant was not an employee of the Respondent and therefore had nolocus standito maintain the within proceedings.

Consequently, the issue of the initiation of the claim in time or otherwise does not arise.

Determination

For all of the reasons set out above the Court has concluded that the Adjudication Officer correctly declined jurisdiction to investigate the Complainant’s substantive case. Accordingly, the Court must disallow the appeal and affirm the Decision of the Adjudication Officer.

The Court so Determines.



Signed on behalf of the Labour Court



Caroline Jenkinson
4 October 2018______________________
JDDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.