Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 2159/04

APPLICANT: Barry Owen McGeown

RESPONDENT: Paul Savage

DECISION

The unanimous decision of the tribunal is that the tribunal does not have jurisdiction to entertain the applicant's complaint of unfair dismissal as the applicant was not an "employee" within the terms of Article 3 of the Employment Rights (Northern Ireland) Order 1996.

Appearances:

The applicant was represented by Ms B Smyth of McGrady Collins Solicitors.

The respondent was represented by Mr P Henry, Barrister-at-Law, instructed by Curran and King Solicitors.

SUMMARY REASONS

1. The originating application was listed for a decision on the issue as to whether the tribunal had jurisdiction to entertain the applicant's complaint of unfair dismissal in view of the provisions of Article 3 of the Employment Rights (Northern Ireland) Order 1996 with regard to the definition of "employee" therein.
2. The tribunal in reaching its decision considered the originating application, the appearance of the respondent, the oral evidence of the applicant and the respondent and documentation furnished to the tribunal by the applicant and identified as exhibits A1 and A2".
3. The tribunal found the respondent to be more consistent in his evidence than the applicant. It was clear to the tribunal that both parties claimed to have, in their possession custody or control documentation, which might substantiate their version of events. However neither arrived to the tribunal with this documentation.

From the evidence presented the tribunal made the following findings of fact:-

(a) The applicant came to work for the respondent as a result of a number of ad hoc conversations between the parties during the period from November 2002 to January 2003. The parties are related to each other.

(b) The respondent is a farmer and was hoping to expand his fertiliser spreading business. The respondent's staffing needs could fluctuate in accordance to the season and orders placed. At this particular time the respondent was busy with the completion of re-building works to the farm as a result of fire damage that occurred in October 2001. Those works were carried out between 2002 until 2004.

(c) The respondent paid the applicant on the basis of the hours claimed by the applicant to have been worked by him. The hours claimed some weeks were in excess of sixty hours but the respondent never at any time queried the amount of hours claimed. The hours were paid at a flat rate of £6.00 an hour.

(d) The respondent provided the equipment used by the applicant in the fertiliser spreading business. There were other men also used occasionally by the respondent for this work.

(e) The respondent had a number of persons working on the re-building works at his farm. This work was generally carried out on Saturdays. All the persons involved in this work were self-employed.

(f) The applicant suffered an accident at work on 23 March 2004. The applicant continued to report for work until 4 April 2004 when he took an agreed period of absence. On 8 April 2004 the applicant advised the respondent that he was fit for work but was informed that no work was available for him, as the respondent had employed another man for a two-week period. The applicant made no objection to this situation.

(g) The applicant, from February 2003 until April 2004, did not take many holidays. During the time he worked for the respondent, the applicant never submitted a claim for payment for days absent either through holiday or sickness.

(h) While the respondent instructed the applicant as to the place he was to work, the applicant controlled the times he commenced and finished work on a daily basis. There was no obligation on the applicant to turn up for work every day.

(i) Prior to commencing working for the respondent in February 2003, the applicant had previously been employed for a number of years as a full-time agricultural labourer. During that employment he had received a P60 at the end of the financial tax year from his employer. However the applicant never queried the respondent about the lack of a P60 from April 2003 onwards.

(j) The applicant was able to work for other people during the period February 2003 onwards and retain any earnings for himself. The applicant did do some work on this basis, at least on two occasions.

4. In summary the issue between the parties was whether the applicant had worked for the respondent under a contract of service as opposed to a contract for services.
5. The tribunal heard oral submissions from both parties. The tribunal considered the cases referred to by the parties but did not find them of assistance given that there was no agreement in writing between the parties in this complaint.
6. The tribunal considered the provisions of Article 3 of the Employment Rights (Northern Ireland) Order 1996 and relevant case law including Ready Mixed Concrete (South East) Ltd –v- Minister of Pensions and National Insurance [1968] 1 All ER 433; O'Kelly –v- Trusthouse Forte plc [1983] IRLR 369. There was serious divergence between the parties as to the conversations, in February 2004. The tribunal took note that evidence given by the applicant of a conversation as to his existing terms and conditions had not been put during cross-examination to the respondent to comment on. It appeared to the tribunal that on the facts of this case the applicant was under no illusion that he was not considered by the respondent to be an employee. Further until sometime after February 2004 the applicant did not seek to change his employment status. The tribunal found on the balance of probabilities it was not satisfied, in light of the facts found, that the applicant was an employee within the terms of the Employment Rights (Northern Ireland) Order 1996.

Accordingly the tribunal concluded it does not have jurisdiction to entertain the applicant's complaint of unfair dismissal and therefore his complaint is dismissed.

Chairman:

Date and place of hearing: 10 January 2005, Belfast.

Date decision recorded in register and issued to parties: