Complainant

Respondent

Parties

Jarlath  Walsh

Des Kelly Interiors

Representatives

  In person

Julie O’Connell, Richard Black Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00044396-001

29/05/2021

The complainant commenced employment with the respondent on January 2017. He was employed as a Delivery Driver.

In January 2019 the complainant’s position became redundant. The complainant continued to provide a service to the respondent on a self – employed basis.

This complaint was received by the Workplace Relations Commission on 29th May 2021.

The Complainant commenced employment with Des Kelly Interiors in January 2017 as a PAYE registered employee on a full-time basis. The position he held was a Delivery Driver (mainly bedding and furniture).

In January 2019 the structure of the business changed, whereby all Carpet fitters and Delivery drivers, were made redundant, with the offer that they would be immediately rehired to continue their duties as before (i.e., there was no break in service).

At this time the Managing Director of Des Kelly Interiors, offered to sell the truck the Complainant had been using as an employee with a guarantee that he would be given the North Dublin delivery route.

The Complainant took up this offer, and also let Des Kelly brand the truck with their new logo. He continued his work as before, working a minimum of 5 days a week on a contract basis, but more often than not working a 6-day week.

When all the stores closed due to COVID 19. In April 2020 another van driver was employed, and I was informed by Greg Kelly this was because he needed a plain van to do deliveries (as the country was in lock down and all deliveries should have been ceased), and my truck was branded. In July 2020, when non-essential retail reopened, I resumed work. At this stage there were now 3 Furniture delivery drivers, of which I was there the longest, and there were 2 furniture delivery drivers when the shops closed due to COVID 19 in March 2020.

Preliminary Issue.

By Complaint Form submitted on the 29th day of May 2021 the Complainant seeks redress pursuant to Section 8 of the Unfair Dismissals Acts. The Complainant alleges that he was an employee of the Respondent Company between the dates 30th January 2017 and 13th May 2021. He asserts that he was constructively dismissed on the second of those dates.

Whilst accepted that the Complainant was at one time an employee of the Respondent Company, he had ceased to be so since the last day of 2018. The Complainant wrote a letter of resignation dated 28th December 2018. The Complainant, it is submitted, is not entitled to rely upon the provisions of the Unfair Dismissals Acts as he fails to meet the definition of employee in the legislation.

It is accepted that the Complainant worked as an independent contractor for the Respondent Company from in or about the start of January 2019. He did so to the parties' mutual benefit. In the time in which he worked for the Respondent as an Independent Contractor the Complainant earned considerably more money than he had earned as an employee. He has, it is presumed, made his own returns to Revenue since January 2019.

Whilst, it is submitted, that the circumstances whereby the Complainant ceased to work as an Independent Contractor are irrelevant (given his non-entitlement to make the within claim), the narrative provided by the Complainant in support of a claim of constructive dismissal is wholly misrepresentative. Work continued to be available for the Complainant- it was he who chose not to do the available work.

Preliminary issue.

Revenue have issued some guidelines in relation to employment status. These guidelines include the following:

While all of the following factors may not apply, an individual would normally be an employee if he or she:

•     Is under the control of another person who directs as to how, when and where the work is to be carried out.

•     Supplies labour only.

•     Receives a fixed hourly/weekly/monthly wage.

•     Cannot subcontract the work. If the work can be subcontracted and paid on by the person subcontracting the work, the employer/employee relationship may simply be transferred on.

•     Does not supply materials for the job.

•     Does not provide equipment other than the small tools of the trade. The provision of tools or equipment might not have a significant bearing on coming to a conclusion that employment status may be appropriate having regard to all the circumstances of a particular case.

•     Is not exposed to personal financial risk in carrying out the work.

•     Does not assume any responsibility for investment and management in the business.

•     Does not have the opportunity to profit from sound management in the scheduling of engagements or in the performance of tasks arising from the engagements.

•     Works set hours or a given number of hours per week or month.

•     Works for one person or for one business.

•     Receives expense payments to cover subsistence and/or travel expenses.

•     Is entitled to extra pay or time off for overtime.

In the instant case the Complainant drives his own truck, is not paid a wage or salary and submits invoices for his services. He is not / was not employed by the Respondent.

The Unfair Dismissals Act, 1977 is an Act to provide redress for employees unfairly dismissed from their employment, to provide for the determination of claims for such redress by Rights Commissioners ……….

There is no jurisdiction to hear the within complaint under this legislation.

There is no jurisdiction to hear the within complaint under this legislation.