EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Kieran Moloney UD15/2013
Post Publications Limited
Thomas Crosbie Holdings Limited
Thomas Crosbie Printers Limited
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. R. Maguire, B.L.
Members: Mr. C. McHugh
Mr. M. O'Reilly
heard this claim at Dublin on 14th February 2014
and 2nd July 2014
and 3rd July 2014
Claimant: Mr Patrick O’Reilly SC instructed by
Byrne Carolan Cunningham Solicitors,Oak House, 39/41 Mardyke Street, Athlone,
Respondent: Mr. John Doyle, Dillon Eustace, Solicitors, 33 Sir John Rogerson's Quay, Dublin 2
The case before the Tribunal is under the Unfair Dismissals Acts, 1977 To 2007.
The claimant submitted claims under the above Act against three named respondents. Respondent 1 also known as PPL, respondent 2 also known as TCH and respondent 3 also known as TCP. There was confusion as to the name of the respondent so the claimant gave evidence on this preliminary / initial point. The three respondents were under the umbrella of SBP.
Claimant’s Case Preliminary:
The Tribunal heard evidence from the claimant. The respondent known as PPL was acquired by respondent TCH in 2002. The claimant was appointed group managing director. The claimant was always paid by PPL and that never changed. The claimant explained that in 2008 he was given extra responsibilities however his contract of employment (COE) remained the same. He also reported to the group director (AD) of TCH. The claimant told the Tribunal that in 2008, 2009 2010 2011 and 2012 his employer was PPL.
In 2010 he was offered a new role as the business in Northern Ireland was to be sold so his position was chief executive would no longer exist. He did work for TCH in its North Ireland and UK ambit of operations but he was employed by PPL and paid by PPL.
A COE was opened to the Tribunal. The claimant clarified that the COE did have the name of TCH on it. However he clarified that “whether it said TCH or TCP it made no difference to me because I was employed by PPL”. The respondent TCP was there to be invoiced i.e. a third party contractor.
The claimant re-iterated that he was employed by PPL and was paid by PPL. He also stated that he was a member of PPL’s pension scheme, the death and disability scheme and his health cover was deducted via PPL’s payroll. The claimant’s form P45 was opened to the Tribunal.
He was in PPL’s retirement scheme and paid pension payment to or via PPL. PPL paid staff that were on sick leave and PPL paid him while he was out on sick leave. This money was reimbursed to PPL by the insurers.
The claimant explained that he was paid by PPL but worked under the umbrella of TCH. At no time did he see TCH on any correspondence as his employer.
He never worked for TCP as “TCP doesn’t do anything other than have a print contract with a print company”.
No one ever told him that he was employed by TCH and no one ever told him that he was employed by TCP. He was never asked to report to anyone in TCH and he was not asked to report to anyone in TCP.
The claimant stated that as far as he was concerned his employer was PPL, as far as the Revenue Commissioners were concerned his employer was PPL as far as the Department of Social Protection were concerned his employer was PPL
The claimant was cross-examined.
NB the claimant’s legal team withdrew the claim against TCH. The legal representative for TCH made an application for costs under SI 24 1968. The costs to be in relation to travel and subsistence. The Tribunal asked the representative to submit details of the amounts and that the Tribunal would determine the application on the next hearing date. The representative clarified that the amount requested under SI 24 1968 was €300.00.
On the second day of the hearing the claimant and a witness for PPL gave evidence regarding payslips and documentation received and/or sent to the claimant.
At the conclusion of the second day of hearing, the Claimant and Respondent 2 both requested that in advance of the case proceeding, the Tribunal would determine whether or not Respondent 2 was the employer of the Claimant. The Tribunal acceded to the request.
The Tribunal has considered the evidence and submissions made in relation to the preliminary application.
The evidence before the Tribunal is that the Claimant was employed a Group Treasurer from September 2010, as reflected in the letter addressed to him of 16 September 2010 signed by TM, then Interim CEO. The letter was signed “on behalf of TCH.” In the body of that letter, it was stated that “For administrative ease, you will continue to be paid through the Sunday Business Post payroll.”
The role of “Group Treasurer” indicates that the Claimant was to carry out duties in relation to a number of linked companies. It was not disputed that the Claimant maintained continuity of service. A letter dated 19 June 2014 showed that the Claimant was continuously employed with PPL Employer Tax registration Number 654624J from 24 January 2000 to 13 July 2012. The Claimant was a member of PPL’s pension scheme, death and disability scheme and his health cover was deducted via the PPL payroll. When he was on sick leave, he was paid by post PPL and the money was reimbursed to PPL by their insurers. PPL also represented itself as the Claimant’s employer in relation to the Application for an E 101 Certificate under Article 14.2.B of EU Regulation 1408/71 to the Department of Social and Family Affairs on 12 February 2010.
Though the letter of 16 September 2010 appointing the claimant to his role referred to a position of “Group Treasurer with TCP,” it was on notepaper headed by TCP, and signed “for and behalf of TCH.” When the Claimant was terminated by letter dated 13 July 2012 this was purportedly from his employment with TCP, and the appeal against that dismissal was confirmed by TCP on 10 August 2012. It is therefore clear that there was no clear delineation from the group’s point of view between the various companies in relation to the hiring and employment of the Claimant.
The group of companies that the Claimant did work for decided, for whatever reasons, to route his payments and benefits through one particular company in that group. In addition, they represented in external dealings at all junctures that this company was the Claimant’s employer.
In these particular circumstances, the Tribunal finds that the employer of the Claimant was PPL – Respondent 1.
Sealed with the Seal of the
Employment Appeals Tribunal