FULL RECOMMENDATION
PARTIES : SULLVET LIMITED DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No’s: ADJ-00026295, CA-00033502-002. This is an appeal on behalf of Sullvet Limited (‘the Respondent’) from three decisions of an Adjudication Officer dated 4 March 2021 and bearing reference number ADJ-00026295: CA-00033502-001, under the Terms of Employment (Information) Act 1994; CA-00033502-002, under the Payment of Wages Act 1991 and CA-00033502-003, under the Organisation of Working Time Act 1997. The Adjudication Officer decided each of the foregoing complaints was well-founded and made an award of compensation in respect of each of them. The Respondent’s Notice of Appeal was received by the Court on 13 April 2021. The Court heard the appeal in a virtual courtroom on 6 August 2021 following which the Court made a request in writing of both Parties to furnish it with copies of relevant documentation to confirm the source of certain payments received by Mr Danny Kennedy (‘the Complainant’) in respect of his employment. Both the Complainant and the Respondent responded by email on 5 October 2021 to the Court. The Worker enclosed copies of his bank statements for the relevant period on which he had highlighted certain cash payments made to his account by Mr O’Sullivan on the following dates in 2019: 30 August, 6 September, 10 October, 31 October, 4 November, 15 November, 21 November, 26 November, 2 December (x 2). Mr Morris, on behalf of the Respondent, stated in his email that the payments made to the Complainant’s bank account had been made by Mr David O’Sullivan from his personal account and in circumstances where the delay in setting up the UK entity meant that no payroll arrangements had been put in place for that entity. Preliminary Issue The Complainant has named an Irish registered company – Sullvet Limited – as the Respondent in these proceedings. At first instance and on appeal, the Respondent’s defence has been that the Complainant was not at the material time – nor ever – an employee of Sullvet Limited. Sullvet Limited supplies certain animal veterinary products to the Irish market. It appears that a director of Sullvet Limited, Mr David O’Sullivan, entered into an agreement with a business associate in the United Kingdom, Mr James Morris, to establish a company in that jurisdiction to distribute similar products in that market. That company was to be named Sullvit (sic) UK Limited. The Respondent submits that the Complainant was recruited to work on behalf of the UK entity, primarily in Scotland. The Complainant submits that the Respondent is seeking to avoid liability in respect of its employment rights obligations to him by claiming that he was not its employee but an employee of a different entity. The Complainant’s Submission The Complainant submits that he commenced employment with the Respondent on 5 August 2019 and that he resigned that employment on 22 November 2019 “due to non-payment of wages”. He further submits he had a contractual agreement with the Respondent that his pay would be €630.00 per week, paid directly to his bank account. The Complainant says that although he was based primarily in Scotland, he performed work in both Ireland and the UK on behalf of the Respondent. He states that he reported to Mr David O’Sullivan in Cork and any payments he did receive were made in Euros. He submits that he is owed a total of €7,948.23 in unpaid wages and fuel expenses The Respondent’s Submission It is common case that the Complainant was never furnished with a completed contract of employment. The Respondent submits, however, that he was furnished with a draft contract, albeit an incomplete and undated one, along with a separate email dated 12 June 2019 which sets out certain basic terms and conditions that were intended to apply to the Complainant including a basic wage of £320.00 per week plus details of a bonus system linked to sales of named products. (Copies of both documents were before the Court.) The draft contract refers to the employer as Sullvit UK Ltd with a registered address at Units 1-4, Charnley Fold Lane, Bamber Bridge, Preston, Lancashire PR5 6AA. All statutory references in that template contract are to English employment statutes. The Respondent also submits that the Complainant was hired to work for the UK entity because he had prior experience in a similar sales role in the UK. He also furnished Mr Morris with a UK National Insurance Number. In the Respondent’s submission, this indicated that the Complainant knew or ought to have known that his employment would be registered in the UK for tax and social welfare purposes. According to Mr Morris, the UK entity had not been incorporated nor had its banking arrangements been finalised in the UK prior to the Complainant resigning his employment. The Respondent further submits that it was intended that the Complainant would receive training in Scotland but that this did not work out as expected and it became necessary to bring the Complainant to Cork to be trained by Mr O’Sullivan there as he has expert knowledge of the products in question. Discussion and Decision on the Preliminary Issue The Respondent’s case is that the Complainant was never employed by it, that he was recruited in the full knowledge that he would be working in the UK on behalf of an English company to be known as Sullvit UK Ltd. For various reasons, the UK entity was not incorporated prior to the Complainant’s resignation. It follows, therefore that no contract of employment between the Complainant and Sullvit UK Ltd ever came into being. Nevertheless, it does not follow that the Complainant’s assertion that he was employed by the Respondent stands up. In circumstances where the Respondent denies it was his employer, the burden of proving what the Complainant asserts rests on the Complainant alone. Having reviewed the documents before it and, having carefully considered the totality of the evidence tendered by the Parties, the Court finds that the Complainant has not established that he had a contract of employment with the Respondent. This conclusion is supported by the copy bank statements furnished by the Complainant himself which indicate that the payments the Complainant received between August 2019 and December 2019 were made on a personal basis by Mr David O’Sullivan; there is no evidence to suggest that they were made on behalf of the Respondent or from the Respondent’s bank account or funds. On the basis of the foregoing, the Court finds that Respondent’s appeal succeeds. The decisions of the Adjudication Officer are set aside. The Court so determines.
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