Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 431/05

CLAIMANT: Laszlo Szakalas

RESPONDENTS: 1. Lyons Transport Limited

2. Mark Lyons

DECISION ON A PRELIMINARY ISSUE

The unanimous decision of the tribunal is that the preliminary issue is answered in the affirmative and the claimant's claim may proceed to hearing.

Constitution of Tribunal:

Chairman: Mr Greene

Members: Mr O'Hea

Mr Martin

Appearances:

The claimant appeared in person.

The respondents did not attend and were not represented.

Sources of Evidence

1. The tribunal heard evidence from the claimant, with the assistance of an interpreter. The tribunal also received a number of documents viz, the claimant's Accession State Worker Registration Scheme Registration Certificate and Care from the Home Office dated 23 September 2004; his Employment Certificate dated 12 May 2004; Driver Records for June to October 2004; and a bank statement belonging to the claimant from 1 October to 23 December 2004.

The Claim and Defence

2. The claimant claimed non-payment of wages. The respondents' response to the claimant's claims was to state that he was employed by a recruitment services company Fix Pont Trade KA, 1092 Budapest, Raday ut 20, Hungary.

The Issues

3. Following a hearing on 25 November 2005 this claim was listed to determine the preliminary issue:-

"Whether the claimant was a "worker" or "employee" of the respondents within the meaning of Article 3 of the Employment Rights (Northern Ireland) Order 1996".

The tribunal was satisfied that the respondents had been notified of the hearing and proceeded to hear the application in their absence.

Findings of Fact

4. (a) The claimant is a Hungarian national.

(b) Following an advertisement in a local paper in Gyor, Hungary, seeking lorry drivers to work in Ireland, the claimant was recruited by Joseph Nemeth in Hungary to come to Ireland to work as a lorry driver.

(c) On arrival at Dublin airport on 7 February 2004 the claimant was met by Karol (Charlie) Nemeth, a brother of Joseph Nemeth and driven to Moy, County Tyrone.

(d) The claimant had paid all costs of travelling to Ireland. At Moy he stayed in a hotel, which he paid for as there was not any work for him. During the week he stayed in a house rented out by fellow Hungarians and returned to the hotel at week ends.

(e) Charlie Nemeth had worked for the second respondent as a lorry driver. He also was arranging jobs for Hungarian nationals in Ireland.

(f) Charlie Nemeth introduced the claimant to a Hungarian speaking Slovakian, Peter, who worked in the second respondent's office. The latter arranged an interview with the second respondent. Discussion was held about the job, and remuneration and he began working around 22 March 2004.

(g) The claimant worked as a lorry driver from 22 March 2004 to 26 November 2004. The claimant was employed by the second respondent, the owner of the first respondent company.

(h) In the course of his work the claimant drove lorries between Ireland and Britain to deliver and collect goods. The second respondent provided the claimant with a credit card to pay for fuel for the lorries and a mobile phone to give him instructions.

(i) Initially the claimant was paid in cash via Charlie Nemeth as this was a convenience to the claimant due to the hours he worked out of the country. Charlie deducted £30.00 per week for his services. This arrangement he made with all Hungarian nationals for one year after they came to Ireland.

(j) Peter, the Slovakian, told the claimant where to go and where to load and unload the lorry and where to pick up the lorry. After four months the claimant was supplied with a tee-shirt with Lyons printed on it.

(k) From 12 May 2004 Charlie Nemeth's involvement with the claimant ended and from September 2004 he was no longer paid a weekly amount by the claimant.

(l) An employment certificate dated 12 May 2004, submitted to the tribunal, describes the claimant as being employed by BESTIMMT (FOTOFAN) KFt based at Gyor, Hungary.

(m) In or about July or August 2004 the claimant opened a bank account with the HSBC bank. The second respondent acted as guarantor.

(n) Wages were paid to the claimant initially by cash, then by cheque and then by electronic transfer and based on Driver's Record forms completed by Peter, the Slovakian.

(o) A Home Office Accession State Worker Registration Scheme Registration Certificate applied for by the claimant with the assistance of Peter, the Slovakian, states that the claimant's employer was the first respondent. The address given for the claimant is that of the first respondent.

(p) The claimant left the respondents' employment on 26 November 2004. When he resigned the second respondent sought to persuade him to remain in his employment.

The Law

5. (a) An employee is a person who works or has worked under a contract of

employment i.e. a contract of service (Article 3(1) of The Employment Rights (Northern Ireland) Order 1996).

(b) A worker is a person who works or has worked under a contract of employment i.e. a contract of service or any other contract i.e. a contract of services (Article 3(3) of The Employment Rights (Northern Ireland) Order 1996.

Application of Law and Findings of Fact to the Issues

6. (a) The tribunal is satisfied that the claimant was a worker or employee for the

purposes of the Employment Rights (Northern Ireland) Order 1996. In so concluding the tribunal took into account the following matters:-

(i) The claimant strongly asserts he was an employee of the

respondents.

(ii) He drove lorries belonging to the respondents from 22 March 2004.

(iii) The claimant's work, when he drove lorries, where to, the products to be delivered and their destination, goods to be collected in England was controlled by the respondents via Peter, the Slovakian.

(iv) The respondents provided the claimant with a mobile phone to accept working directions, a credit card to pay for fuel for the lorries and a tee-shirt with the Lyons name on it.

(v) He was paid by the respondents in cash, then by cheque and by electronic transfer.

(vi) The Home Office document of 23 September 2004, based on an application completed with the assistance of Peter the Slovakian, stated the first respondent was the claimant's employer.

(vii) Beyond the statement in the respondents' Notices of Appearance that the claimant was employed by Fix Pont Trade KA, 1092 Budapest, Raday ut 20, Hungary there is not any evidence to support that contention. The claimant has denied this.

(viii) The claimant denied that he was employed by BESTIMMT (FOTOFAN) KFt, Gyor, Hungary. He further advised the tribunal that to be employed by a company based in Hungary when he still had children dependant on him there would make him liable for tax in Hungary and UK

(b) The preliminary issue is answered in the affirmative.

(c) The claimant's claim may now proceed to hearing.

Chairman:

Date and place of hearing: 17 May 2006, Omagh.

Date decision recorded in register and issued to parties: