EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO’s.
Qi Zhang, UD1170/2013
Patrick Pang T/A Shirley House,
UNFAIR DISMISSALS ACTS, 1977 TO 2007
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. C. Corcoran B.L.
Members: Mr. J. Horan
Mr. C. Ryan
heard this claim at Dublin on 31st October 2014
Claimant: Ms Barbara Mebtouche, Mr. Noel O'Hanrahan, O'Hanrahan Lally,
Solicitors, Dublin Law Chambers, 77 Talbot Street, Dublin 1
Respondent: Mr. Andrew Whelan BL instructed by Bourke & Co Solicitors,
167-171 Drimnagh Road, Walkinstown, Dublin 12
The Tribunal heard evidence on a preliminary point as to whether the claimant was an employee of the respondent.
The Tribunal heard evidence from the owner of the respondent company. He is in the restaurant/take away business for 25 years. He owns two oriental restaurants; one restaurant in Kimmage in Dublin and one in Drimnagh. He explained that the claimant is a food delivery driver and was in that position for 6 to 7 years. The drivers work from 5.30 pm until midnight. The claimant worked on Tuesday nights however the drivers working nights could vary.
Regarding payment of monies to the claimant he paid the claimant €35.00 petrol money at the start of the shift, he did not pay him a wage and the claimant received a delivery service charge. For example if a food item/s cost €10.00 the driver would collect €11.60 from the customer and the driver would retain €1.60. He did not pay the driver any other payment. He did not pay holiday pay to the claimant. He did not pay the claimant if he was not delivering. He did not pay tax for the claimant. The claimant could send someone else to do the deliveries if he so wished.
He did employ other people directly and paid their tax and prsi for those employees. He was audited by the Revenue Commissioners.
The Tribunal heard evidence from the co-owner / wife of the previous witness. She confirmed that they were audited by the Revenue Commissioners. They did not pay tax or prsi for the claimant. She had not asked the claimant for his pps number. They did not register the claimant for tax or prsi.
The Tribunal heard evidence from the claimant. He told the Tribunal that the respondent asked him for his pps number and that he gave his pps number to the respondent. The respondent decided when he was to work and where he was to work. The respondent decided the times he was to work and decided where he was to deliver. He was a student but he had a class of Visa that allowed him to work. He did also work as a taxi driver and did have a taxi cab which he rented off a cab company. He was not able to do both work at the same time.
Having heard the evidence adduced the Tribunal determines that the claimant was not an employee of the respondent company. The claimant had no contract of employment with the respondent either expressed or in writing and confirmed this in cross-examination. The claimant was engaged in work for the respondent by way of a contract for service. The Tribunal declines jurisdiction of the claim under the Unfair Dismissals Acts, 1977 to 2007, and the Organisation of Working Time Act, 1997.
Sealed with the Seal of the
Employment Appeals Tribunal