FULL RECOMMENDATION
PARTIES : ESSENTRA PACKAGING DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00019782 The Complainant alleges that he was unfairly dismissed, within the meaning of the Act, from the employment of Essentra Packaging Limited (‘the Respondent’) on or about 12 November 2018. At first instance, the Adjudication Officer held that the complaint under the Act was not well-founded as the Complainant was engaged by the Respondent pursuant to a contract for services. The Respondent’s submission on the appeal is that the Complainant was never employed by it under a contract of service. It follows that the Complainant must first establish his locus standi to pursue the within complaint under the Act. The issue of the Complainant’s employment status is a mixed question of law and fact. The Complainant’s Evidence The Complainant outlined the history of his engagement with the Respondent and its predecessor companies. He commenced as an apprentice fitter at age 15 with Dakota in 1983. Having completed his apprenticeship, he was retained in employment by that company as a qualified fitter for a little over a year. A change of control occurred in the business at that time and the new management team decided to outsource the maintenance function with the result that the Complainant lost his job. He established himself thereafter as a sole trader and was engaged by the company in that capacity to provide maintenance services. He continued to provide such services to Dakota and to its successors, including the Respondent, for some thirty years after that until November 2018. The Complainant gave detailed evidence of the manner in which he provided those services, working very significant hours every week, often working seven days a week to ensure that machinery was kept operational. He focused on reactive maintenance generally during the week and engaged in preventative maintenance at weekends. He had no issues accessing the premises at weekends as he was well-known to the security personnel. He often worked alone in the factory at weekends and overnight. He kept a stock of new and second-hand spare parts at his home workshop for the company’s machines. He spent many hours, he told the Court, repairing used and damaged parts, thus saving the Respondent many thousands of Euro. According to the Complainant, he had enjoyed excellent relationships over the years with members of the Respondent’s management team and with personnel on the factory floor. He frequently participated in staff outings, regularly attended company Christmas parties and colleagues’ retirement parties. The Complainant’s commitment to the Respondent was such that he seldom went on vacation and when he did so he also took steps to ensure that alternative maintenance arrangements were in place during his absence. The Complainant engaged a named electrician to provide cover for him at those times. However, the Complainant also ensured that he had his telephone with him at all times when travelling as the person covering for him would not have been familiar with the idiosyncrasies of the Respondent’s machines and the Complainant frequently had to talk his replacement through particular tasks. The Complainant told the Court that rumours began to circulate in the plant in or around June 2018 to the effect that the Respondent intended to employ a new maintenance manager. He approached management in response to those rumours. He was initially assured that nothing was afoot. The issue arose again in October 2018. The Complainant says he was told by the Plant Manager to submit a Curriculum Vitae and that the Human Resources Manager invited him to a meeting at the Carlton Hotel. The Complainant attended that meeting with his accountant thinking it to be an ordinary business meeting. However, he was asked to proceed without the accountant present and a form of interview took place in the bar of the hotel where other people were coming and going. That meeting lasted approximately twenty minutes. The Complainant told the Court that on 1 November 2018 he was informed by the Plant Manager that his role was gone as a named person would be commencing as Maintenance Manager the following day. The Complainant proceeded to complete the work he had in hand at the Respondent’s premises and left for the last time on 12 November 2018. He sought. but was refused, a redundancy payment from the Respondent. The Complainant gave evidence in relation to mitigation of loss. He told the Court that he had completed one or two courses to upskill himself since November 2018. He had attended a number of interviews he said which resulted in two offers of employment. He opted to commence working for an unnamed multinational company in early 2020 as a contractor. He continues to work for that employer which he invoices for thirty-nine hours per week at the rate of €39.00 per hour. Under cross-examination by Mr Mallon BL, the Complainant confirmed that he is both a director and an employee of Commercial Print Repairs Limited (‘the Company’), as is his wife, and that their two children are also employees of the Company. The Complainant accepted that he had incorporated the Company on 4 August 2000 (as per a report from Vision-Net exhibited by Counsel) and that a commercial agreement had been in place between the Company and the Respondent from that date for the provision of maintenance services by the former to the latter. In the period prior to the termination of that contract in November 2018, the Company was invoicing the Respondent at the rate of €55.00 per hour (a rate agreed in 2016) for the work performed by the Complainant and in respect of his daily travel time of thirty minutes each way between his home and the Respondent’s premises. Those invoices were raised by the Complainant on foot of purchase orders generated by the Respondent. All work performed by the Complainant for the benefit of the Respondent from August 2000 onwards had been done on foot of the aforementioned commercial agreement on a business-to-business basis. The Complainant told the Court that the Company had performed services for other clients during the course of 2019. Counsel also exhibited sample copy invoices, issued in the name of the Company and dated on various dates in November 2018, the accuracy of which was confirmed by the Complainant. The invoices exhibited for that month total €10,530.00 for parts and labour, before VAT (13.5% for labour and 23% for parts) is applied. The Complainant confirmed that he charged a mark-up on any parts he supplied to the Respondent. He accepted that he thereby made a profit by holding and providing spare parts for the Respondent’s machines. A number of the invoices exhibited included a claim for payment in respect of an “Extra Man”. The Complainant confirmed that he an arrangement with other ‘self-employed’ individuals whom he could call on when their services were required (e.g. when he was on vacation) and who were then paid by the Company. In response to questions put to him by Counsel, the Complainant confirmed the following: (a) he had never furnished the Respondent with details of his tax allowances/credits; (b) the Respondent did not make deductions in respect of income tax, PRSI or USC from its remittances to the Complainant; and (c) the Complainant’s income tax and social welfare obligations were met through the Company. Counsel then exhibited a copy Curriculum Vitae (undated). The Complainant confirmed that he had prepared this personally and had furnished it to the Respondent in October 2018. Under the heading ‘Personal Profile’, the Complainant summarised his professional experience as follows: “Experienced fitter of thirty-four years; Established and solely ran successful business venture (Commercial Print Repairs) for twenty-nine years; Experienced in all areas of print packaging maintenance and installation of machinery with a proven and successful track record.” In the ‘Work History’ section of his Curriculum Vitae, the Complainant describes himself as being a “Self-employed printing engineer” from “1989 to date”. Finally, Counsel exhibited a copy of the Company’s abridged financial statements for the year ended 31 December 2018 as filed with the Companies Registration Office. The Complainant confirmed that the statement was accurate in all respects to the best of his knowledge and understanding. The statement shows that, as of 31 December 2018, the Company’s total assets, less current liabilities, stood at €837,709.00 and shareholders’ funds stood at €556,018.00. Legal Submissions on behalf of the Complainant In a concise legal submission in support of the Complainant’s claim to have been engaged by the Respondent on foot of a contract of service at all material times, Ms Ireland said that in the extensive body of decided case law in relation to employment status the courts regularly point to the need to distinguish between the reality of the day-to-day working relationship between a worker and the beneficiary of the worker’s activity, on the one hand, and the appearance that can be given to that relationship by the parties, on the other hand. Ms Ireland referred the Court to the judgment of the High Court inPhelan v Coillte[1993] 1 IR 1 in support of her submission but did not open the case. Legal Submissions on behalf of the Respondent Mr Mallon BL opened the judgment of the Supreme Court inCastleisland Cattle Breeding Society Limited v The Minister for Social and Family Affairs[2004] IESC 40; 4 IR [2004] 150 in support of his case. He submitted that the copy invoices, the Company’s statement of accounts, the Complainant’s Curriculum Vitae exhibited to the Court as well as the Complainant’s own evidence unequivocally demonstrate that the Complainant at all material times was performing services for himself and not for another person; in doing so, the Complainant provided premises (his home workshop), equipment, investment (in the form of a reserve of spare parts for machinery) and employed others to assist in the business; and finally that the Complainant was assessed for income tax and social welfare purposes on the basis of the payments he received as an employee and director of the Company. Discussion and Decision Having carefully considered the Complainant’s evidence, and in particular his evidence in reply to Counsel’s cross-examination, the Court finds that the Complainant has not established that he was engaged by the Respondent under a contract of service such as to qualify him to bring a complaint of unfair dismissal under the Act. The Court further finds that the Complainant fully comprehended the business-to-business nature of the relationship that was in place between the Company and the Respondent for over twenty-eight years. This was no sham arrangement for the benefit of the Respondent or to the detriment of the Complainant: it was one from which the Complainant benefitted significantly over the years and in respect of which he received comprehensive professional advice, as is evidenced inter alia by the financial statements returned to the Companies Registration Office. Having regard to the foregoing, the Court determines that the appeal fails, and the decision of the Adjudication Officer is affirmed. The Court so determines.
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