EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO’s.
John Barry RP237/2005 MN354/2005
Conor O'Brien RP239/2005 MN356/2005
Mary O'Connor, RP240/2005 MN358/2005
Michael Spratt, RP244/2005 MN362/2005
Ciaran Dolan, RP246/2005 MN364/2005
Against
Department Of Agriculture and Food, Kildare House,
under
REDUNDANCY PAYMENTS ACTS 1967 TO 2014
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr E. Murray
Members: Ms. M. Sweeney
Ms P Doyle
heard this appeal at Cork on 10th June 2016 and 19th September 2016
and 20th September 2016 and 21st November 2016
and 22nd November 2016 and 23rd November 2016
and 24th November 2016 and 25th November 2016
Representation:
_______________
Appellant: Mr Michel Howard S.C., instructed by
McCann Fitzgerald, Solicitors, Riverside One, Sir John
Rogerson's Quay, Dublin 2
Respondent: Mr David Hardiman S.C., instructed by
Chief State Solicitor's Office, Osmond House, Little Ship Street, Dublin 8
This matter comes before the Tribunal by way of a referral from the Supreme Court.
The Order of the Supreme Court dated the 16th day of July 2014 provides, inter
alia,
as follows;
“it is ordered that the matter herein be remitted to the Employment Appeals Tribunal for re-hearing of a question of fact as to whether the Appellants were employed by the Respondent or were self-employed persons”
The Tribunal has been assisted in the manner in which it should approach the case by the helpful Judgment of Ms. Justice Laffoy wherein she states;
“Remittal to the Tribunal
11. On the remittal from this Court to it, the function of the Tribunal will be to determine whether the Applicants’ claim to be entitled to payments under the Redundancy Payments Acts and the Minimum Notice Acts have been established in accordance with the applicable statutory criteria. That will involve, inter alia, determining whether each of the Applicants was an employee of the Minister in accordance with the application of the relevant legal principles to the evidence before it.
12. We fully agree with the view expressed by Edwards J. in his judgment (at para.42) that the work relationship between each of the Applicants and the Minister “was a very unusual one, and one which it is not easy to classify”. Notwithstanding that, in making the determination which it will be under a duty to make, the Tribunal will have to assess the evidence as to the work relationship of the Applicants with the Minister adduced by the parties before it by reference to the legal principles which have been established by the courts over the years in order to make a finding as to whether or not each of the Applicants was an employee of the Minister. No doubt the Tribunal will be assisted in that task by the guidance given in the judgment of Edwards J. However, it is for the Tribunal to determine on the basis of the evidence before it as to whether, in accordance with the established principles, each of the Applicants was or was not an employee of the Minister prior to October 2004”
Background
The Applicants in this case are five veterinary surgeons who have provided services to the Minister for Agriculture and Food (the Minister) at the Galtee Foods Meat Factory (Galtee) in Mitchelstown, Co. Cork and did so up to its closure in October 2004. The Applicants acted as Temporary Veterinary Inspectors (TVIs) at the factory. The Role of the TVI was to provide support to the Veterinary Inspector (VI) who was a permanent employee of the Minister and who was the Veterinary Officer in charge of quality assurance, compliance and related matters at the meat plants.
Because of an increase in statutory regulations the Department determined in or around the year 1974 that it needed to form panels of TVIs who would provide support to the VIs at the various meat factories around the country.
Essentially the Applicants’ work involved inspecting pigs at the Galtee Meat factory, prior to and after slaughter, to ensure that they were disease free. The work followed a specification provided by European Legislation and was done for the purposes of safeguarding human health.
The Panels
Panels of TVIs were formed by the Minister in respect of each meat plant in the country. Veterinary surgeons were permitted to apply for membership of a panel relating to a specific factory. The TVI’s role was to do ante and post mortem examinations of carcasses. The work rosters were administered by the VI, part of whose role was to ensure that there were adequate TVIs available when production was ongoing. If a TVI was not available for any reason he would notify the VI who would in turn notify the next most senior person on the panel and offer the shift to that person.
Admission to the panel was not competitive or subject to interview and was determined by the fact that the applicant was a qualified veterinary surgeon, was registered on the Veterinary Register and was not precluded from doing the work of a TVI by virtue of any other employment. They also had to undertake two weeks of on the job training at their own expense. The effect of this was that every qualified Vet in the country in private practice was entitled to have a place on a panel.
The applicants were placed on the panel in the order in which they applied, and this determined seniority in relation to available work.
In respect of Galtee, and indeed in respect of all of the meat plants a greater number of TVIs were placed on the panel than was actually required to do the work. This was to ensure that there would always be adequate TVIs to cover production at the meat plants. In the case of Galtee, when it was in full production, the number of TVIs required each day was nine. There were three production lines with one TVI on each line and there were three shifts per day. With the exception of one, all of the Applicants were contemporaneously engaged in private veterinary practice in the locality.
The distribution of work depended on the activity in the various factories. The persons entitled to be called first were those who had seniority on the panel. If a TVI was not available for a variety of reasons then the next most senior person on the panel who did not have a regular shift of his/her own would be called and so on. The most senior members of the panel worked regular shifts in the factory. One shift lasted three to three and a half hours, and the TVI’s with regular shifts would do a shift every weekday.
The Applicants
The relevant information relating to the Applicants in this case is as follows:
Name | Year Qualified as a Vet | Year of entry to the panel | Approximate year of procuring a regular shift |
John Barry | 1970 | 1977 | 1986 |
Mary O’Connor | 1981 | 1990 | 1994 |
Ciaran Dolan | 1969 | 1976 | 1985 |
Conor O’Brien | 1975 | 1977 | Unclear |
Michael Spratt | 1967 | 1981 | Unclear |
Payment for Services
Payment was made to TVIs on foot of “claims” submitted by them to the Minister for the shifts that they worked. Initially they were paid on an hourly basis and later they were paid per shift. They would submit claim forms, and payment would be approved by the VI and submitted for payment. Payment would be made directly to the TVIs. PAYE and PRSI were deducted from the payment and VAT which would ordinarily be charged by a veterinary surgeon was not paid. The rate of pay when analysed on an hourly basis was significantly higher than that of the VI.
16% “Rule”
The 16% Rule was a term of the engagement of TVIs whereby they could decline up to 16% of shifts offered to them. That could amount to 40 shifts from the 250 that were available to those with regular shifts.
The “Rule” is set out in the appendix to the Ministers document dated the 12th of November 1999 and headed “Conditions of Engagement of Part-time Temporary Veterinary Inspectors”, which provides as follows;
“Where a TVI is persistently turning down a percentage of shifts then this may result in a loss of seniority. A guideline as to what constitutes persistent is 16% of shifts in any three month period”.
Contractual Documentation
The documents seen by the Tribunal comprise of a series of documents emanating from the Minister. The earliest of these appears to be dated the 28/8/1995 with subsequent more expansive documents being available from 1999, 2003 and 2004. There is no contract documentation in respect of the individual Applicants.
Closure of the Factory
Galtee closed its factory in Mitchelstown in October 2004. At that time the workforce, who worked for Galtee, were made redundant. The VI and the Agricultural officers who were fulltime departmental employees were transferred to other meat plants, and the TVIs were advised that there was no further work available for them in the plant. The closure came as a serious blow both to the town of Mitchelstown and to all the persons engaged in work at the plant. The Minister first became aware of the closure from the media. The Applicants were first officially notified of the impending closure of the plant by the Minister by letter on the 15th day of October 2004. This letter was in response to correspondence from the Applicants themselves, sent after they discovered locally that closure was imminent.
Position of the Minister for Agriculture
The position of the Minister is and always has been that the Applicants were engaged on a contract for service and that they were not employees of the Minister. That position is set out in the letter of the 15th of October 2004, previously referred to at 7 above, from Mr. Peter Pringle, of the Personnel division of the department. It is worth quoting as it summarises the positon that the Minister has maintained from the outset of this matter;
“The position in relation to the engagement of part-time Temporary Veterinary Inspectors (TVIs) by this Department is that TVIs are engaged by this Department at export approved meat plants on a contract for services basis (i.e. contractors) to assist this Department’s permanent veterinary staff at such plants. TVIs are private veterinary practitioners who are in business on their own account providing a professional service to this Department on a part-time basis. They may, and do, continue in private practice alongside undertaking TVI work for this Department. They chose the meat plants in which they want to work and they transfer from one panel to another if they wish. Their engagement by this Department is in order to facilitate fluctuations in the rate at which slaughtering is taking place at these plants. Consequently, the frequency of their engagement is determined by level of slaughtering at each plant.
TVIs are called in by this Department’s Veterinary Inspector-in-charge at such plants, as and when required, mainly on the basis of their seniority on the TVI panel. A TVI may have his/her name placed on a maximum of four panels, i.e. four meat plants, but must hold only one regular shift. Regular is defined as attendance on more than 50% of “kill days” in the previous three months. Remuneration is on a fee basis at rates fixed from time to time between the Department and Veterinary Ireland”.
Position of the Applicants
The positon of the Applicants is set out in the correspondence from a number of them to the Minister or around September 2004 in which they asked; “if their employment as Temporary Veterinary Inspectors is to be terminated and if so they call upon the Department to recognise their statutory rights as employees of the Department”.
10. The Role of the Tribunal
The Tribunal understands its role to be to determine whether each of the Applicants was or was not an employee of the Minister prior to October 2004.
11. Approach
Mr Justice MacMenamin suggests in his judgement that the Tribunal should proceed as follows:
“I would suggest the following course of action might be adopted before the reconstituted Tribunal:
(a) That the parties prepare an issue paper identifying the questions now to be determined by the Tribunal. This issue paper should be no more than two A4 pages. It shall be submitted to the Tribunal:
(b) That the parties prepare written submissions of no more than fifteen A4pages. These should address, in sequence, the agreed issues as identified in the issue paper. The sequencing and timing of these submissions are a matter for the Tribunal.
(c) The Tribunal may, thereafter, apportion such time, as may appear to it appropriate, for oral submissions. I note the parties accept that the evidence which has already been heard, may now be accepted by the Tribunal on foot of the transcript. It will be necessary to refer to those transcripts to assist the Tribunal panel now charged with finally concluding the matter.
(d) In the event that the parties disagree in relation to the issues, I would suggest that the Tribunal itself should receive a proposed issue paper from both sides, and should thereafter prepare its own issue paper, identifying the issues which, in turn, should be the subject of written submissions in the sequence therein set out”.
The Tribunal proposes to adopt this approach.
12. The Relevant Legal Principles
The Tribunal has listened at length to the submissions from learned Counsel in relation to the legal principles applicable to this case. The Tribunal has also read the written submissions of the parties in this regard. Whereas the Tribunal does not propose to a detailed summary of the Law, the following quotations are deemed relevant and indicative of the legal principles involved.
(a) In the case of Henry Denny & Sons Ireland Limited –v- The Minister for Social Welfare (SC) Mr. Justice Keane stated inter alia as follows;
“The criteria which should be adopted in considering whether a particular employment, in the context of legislation such as the Act of 1981, is to be regarded as a contract for service or a contract of services have been the subject of a number of decisions in Ireland and in England. In some cases different terminologies is used and the distinction is stated as being between a “servant” and “independent contractor”. However, there is consensus to be found in the authorities that each case must be considered in the light of its particular facts and the general principles which the Courts have developed”.
In his Judgement Mr. Justice Keane quotes the decision of Market Investigations –v- The Minister for Social Security 1969 2AB 173 where Cook J states;
“no exhaustive list has been complied and perhaps no exhaustive list can be complied in situations in consideration which are relevant in determining that question, nor can strict rules be laid down as to the relevant weight which the various considerations should carry in particular cases”.
Lady Justice Smith in the case of Cable & Wireless PLC v Muscat stated that:
“In the context of statutory employment rights, such as those now granted by the Employment Rights Act, 1996, it has been said on more than one occasion that the irreducible minimum of mutuality of obligation necessary to support a contract of employment is the obligation on the employer to provide work and the obligation on the worker to perform it. That mutuality of obligation must be accompanied by a sufficient degree of control by the employer over the worker”.
A series of “tests” which have been variously described as the “control test”, “the enterprise test”, “the integration test”, “the right of substitution test”, have emerged from the jurisprudence with regard to assisting in distinguishing contracts for services from contracts of employment. In order to analyse the facts of the case in the context of these tests, however, the Tribunal understands the law to be that the requirement of establishing mutuality of obligation between the parties has to be met. In the absence of such mutuality a contract of employment cannot be deemed to exist. Mutuality of obligation consequently is a “sine qua non“ to the existence of a contract of employment.
Finally, the Tribunal understands that in the event that mutuality of obligation is established and having regard to the other tests it must then take a global view of the facts of the case before reaching a conclusion.
13. The Issues
The difficulty associated with making a determination in this case is highlighted by the fact that the parties herein were unable to agree on the formulation of an Issue Paper. Consequently, it fell to the Tribunal to formulate its own Issue Paper and it has done so, drawing extensively from the drafts furnished by the parties.
14. The Issue Paper
This matter having come before the Employment Appeals Tribunal by virtue of an Order of the Supreme Court dated the 15th day of June 2006, the Tribunal finds the following issues of fact stand to be determined
Did the evidence called during the hearing which commenced before the Tribunal on the 8th day of January 2009, and subsequently at the hearing commencing on the 10th day of June 2016 establish mutuality of obligation as between the parties?
Did the terms of the relationship between the parties alter over time such as to establish mutuality?
Was the 16% “Rule”, and the manner in which it came about and was operated in respect of the Applicants, indicative of the existence or otherwise of mutuality?
Did the contractual documentation issued by the Respondents give any assistance in establishing mutuality of obligation between the parties?
If the answers to the above establish mutuality of obligation then;
Did the Minister exercise control over TVI entry, change of and departure from, TVI panels and is that indicative of the status of the Applicants?
Were the differences between the panel system and the terms of engagement of departmental vets (referred to in the evidence as VI’s) indicative of the status of the Applicants?
Was the form of payment, including the deduction of tax, PRSI and union subscription from the Applicants’ income indicative of their status?
Was the supply of tools and protective equipment to the Applicants, indicative of the Applicants status?
Was the level of supervision and control exercised by the VI’s indicative of the status of the Applicants?
10. Was the code of practice for determining the employment or self-employment status of individuals helpful in establishing the status of the Applicants?
11. Taking an overview of all the elements of the relationship between the Applicants and the Respondent did these indicate a contract of employment or a contract for services?
12. What was the understanding of the parties as to the nature of the relationship they entered into and worked under?
13.Was the control of the meat plant’s operation by Galtee indicative of the relationship between the parties?
14.Were the Applicants sufficiently integrated into the Respondent’s business such as to establish a contract of service?
15. Having regard to all of the foregoing was each of the Applicants an employee of the Minister with regard to the evidence and the general principles which the Courts have developed?
15. Findings of Fact
The Tribunal finds the answers to the questions set out above to be as follows;
1. Did the evidence called during the hearing which commenced before the Tribunal on the 15th day of June 2006 and subsequently at the hearing of 8th day of January 2009, and subsequently at the hearing commencing on the 10th day of June 2016 establish mutuality of obligation as between the parties?
Answer:
No. The Tribunal by a majority decision (Ms Doyle dissenting) is not satisfied that the evidence established mutuality of obligation between the parties
Reasons:
(a)
At the time the Applicants first entered onto the TVI panel, there was clearly no mutuality of obligation between the parties as there was no obligation on the Minister to provide work for the panel members. Indeed, a TVI could be on the panel for several years before getting any work at all, and thereafter would only have had sporadic work until he reached a position of seniority (in terms of time) on the panel. The Tribunal cannot distinguish between Vets at the lower end of the panel who had no, or no promise of work, from those at the top end of the panel who had work by virtue of longevity on the panel.
(b)
The evidence does not suggest that there was any firm obligation (consistent with employment) on the Applicants to attend on any particular day if they took the expedient of advising the VI in a timely fashion, so that the next person on the panel could be called in. Essentially, work could be refused and that, in the majority view of the Tribunal, is not consistent with employment.
(c)
The pay structure that existed for the Applicants related to time worked. Essentially the Applicants made claims in respect of the hours or shifts worked. The rate of pay received by the Applicants was considerably in excess of the rate on an hourly basis paid to the VIs who were indisputably employees of the Minister. The Tribunal takes the view that this disparity in pay is not consistent with employment and could only reflect that the Applicants were in receipt of extra compensation because of the sporadic nature and the uncertain availability of work, and to induce them away from other professional activities.
(d)
Unlike the VI’s the TVI’s had no fixed retirement date.
(e)
On the closure of Galtee it was open to the Applicants to continue on panels for other meat plants.
- Did the terms of the relationship between the parties alter over time such as to establish mutuality?
Answer
No. The Tribunal by majority decision, (Ms Doyle dissenting), is not satisfied that the relationship between the parties altered over time such as to establish mutuality.
Reason
(a)
The Tribunal are not in a positon to conclude from the evidence anything that suggests that the status of the Applicants had changed over time or that there was a transition in status from contractors to employees at a given time.
- Was the 16% “Rule, and the manner in which it came about and was operated in respect of the Applicants, indicative of the existence or otherwise of mutuality?
Answer
No.
Reason
Whereas a great deal of evidence has been heard in relation to the 16% rule, it appears from the evidence that some of the Applicants were barely aware of the rule. These were clearly conscientious individuals who were happy to work the hours that they were asked to work. There is no evidence of any monitoring of the 16% rule or the maintenance of any records of refusals on behalf of TVIs to work shifts offered to them. It is likely that reference to it as a “Rule” is in fact a misnomer, and in the Minister’s documentation it is referred to as a “guideline”.
4. Did the contractual documentation issued by the Respondents give any assistance in establishing mutuality of obligation between the parties?
Answer
No.
Reason
(a)
The Contractual documentation is predicated on a relationship of contract for service. The documentation does not at any time or in any way suggest that the relationship between the parties is one of employment.
(b)
At no time did the Applicants or their union assert or advance the case to the Minister that the position was otherwise, and while the union represented the Applicants in relation to matters such as pay and conditions there is no clear assertion at any time that they were in fact employees of the Minister. Issues such as pension, retirement age and other such matters consistent with employment were never raised with the Minister.
(c)
It appears that the first real assertion on behalf of the Applicants that they were employees was in the correspondence sent to the Minister after the closure of Galtee.
16. Dissenting Opinion of Ms Doyle
I wish to record a dissenting opinion in this case. My colleagues have found an absence of mutuality of obligation between the parties. I hold a contrary viewpoint.
From the outset, I was struck by a notable vacuum in foundation documents established to describe the grade of Temporary Veterinary Inspector. It was clear from a Department of Agriculture and Fisheries Personnel Division letter of Authorisation, dated 5 July 1977, that Mr Barry was approved for engagement in a part time capacity, as and when required. This was not accompanied by a contract of employment. I found that the absence of a foundation document of origin or contract served as a major opaque factor in the case. It was clear to me that both parties took it in turn to describe their respective recollections of their role and functions as they saw it. I found these descriptions to be subjective at times and I concentrated my consideration of the case on the actual objective realities of the employment relationship.
I began to understand as the case progressed that both parties were subject to change following the more stringent rules on Meat Production and commensurate instructions on fee charging which emanated from the EU. The Department needed more Vets to meet the requirements and this manifested in a higher attendance at the Plant by the complainants.
I was particularly drawn to the table of the entire workforce of TVIs recorded in September 2004. The complainants were listed under “Permanent TVI” category and a clear distinction was drawn between them and temporary colleagues. This was evidenced by a lack of personnel numbers given to most of the temporary grouping, which indicated that many did not actually attend the plant to work. This contrasted with the complainants “regular” status which was defined as “attendance on more than 50% of kill days in the previous 3 months”.
It is of note that the complainants had a very high attendance rate at the Plant over the decades preceding the claim. In my opinion, they were at the plant more than the Veterinary Inspector himself. This did not strike me as commensurate with the role of contractor. I found that they were “ part and parcel” of the organisation as referenced by Lord Denning in Bank Vaar Handel Scheenpvoort NV V Slatford 1953 . I also found that the description of “Permanent /Temporary “replaced the 1977 description of the role.
In considering the profile of the five complainants at the centre of this case, I was struck by their A-typical status. On one level, they were described by the respondent as having “too many freedoms” to be regarded as employees. The respondent submitted that there was no contractual agreement, or duty on the respondent to provide work to the complainants.
On the complainant’s submissions, they were described as part time workers with a sustained attendance and work pattern commitment to the Respondent. I found them to be busy practitioners juggling a private practice with a parallel employment profile of TVI. This is not unlike a GP who is managing a busy practice, but also manages to be an employee of the HSE as a Medical Officer of a Community Hospital. The same can be said for a Consultant in a private hospital who works as both self-employed and directly employed. It is possible to have a dual employment relationship.
I found that the facts of the case demonstrated that the 5 complainants could safely demonstrate that they complied with “regular attendance” requirement. They observed the 16% rule which in my view confirmed that they had an obligation to attend for 84% of the shifts offered. The dispute between the parties centred on whether the obligation of the respondent towards the complainants arose on a mutual basis? I found that based on the EU Regulations, the presence of the TVI was essential to the core working of the Meat Plant. I also found that through the evolution of time the complainants had been identified as the senior TVIs on the permanent panel. I say that mutuality of obligation existed through an osmosis of the imperative contained in the regulations and the seniority of the TVIs on the panel. They were offered the work first; the work was a necessary precursor for production and the TVIs were bound by rules of attendance. By accepting the omnipresence of the TVI panel, I find that the respondent undertook to rely on that panel as the sole source of supply of labour. This for me diminished the “remoteness” of a contract worker.
As Counsel for the Applicants submitted: “They had a recurring expectation of work on a seniority basis”
In attempting to categorise these workers, I found that their profile matched that of a zero hours’ contract worker with actual fixed regular attendance. I found it ironic that the attention given to advancing on the EU Regulations which served to implement high standard regulations in Meat Production were not matched with a commensurate attention to the EU Directives on Part Time and Fixed time working which were simultaneously evolving in Ireland in the form of Part time and Fixed Term Legislation.
There is an expansive definition of an employee in these statutes, inclusive of a clause which may have assisted the parties.
I did find it unusual that the parties had not focused their minds on the breadth of this definition. Perhaps the circumstances of the closure over took them? I found that it gave some clues in relation to “in the service of the state “to at least prompt a collective analysis of the implications of the Act on the TVIs.
I accept that the TVI had a higher hourly rate than the established VI, however, reference was made by the parties that this was aimed at compensating for holidays for which 5 weeks were allowed (unpaid) This does not fit either with contractor status. In addition, they accepted a reduction in payments. Time and time again during the analysis, we came across aspects of a direct employment relationship. These were pieces added over time, such as the 16% rule, maintenance of panel placing post maternity leave and the 24-Hour notice of change clause.
I noted that the Respondent confirmed that the Minister paid Employer PRSI for the complainants. This is a firm inconsistency with the “contractor” argument. In addition, the grade of TVI was subjected to a Parallel Benchmarking process in 2003/2004 which was reported on in 2006. This was also the preserve of the employee of the public sector at that time and the TVIs were no different in having to demonstrate “Modernisation and Flexibility”
In applying the Code of Practice on determining employment /self-employment, I was struck by the “fit “of the TVIs to employee status and the “mis fit “to self-employed status, during their time spent in the Plant. It is true that 4:5 held dual roles but the code of practice is useful when it states:
It is also possible to be employed and self-employed at the same time in different jobs
Finally, I am mindful of the Minister held a capacity to invoke the power to discipline by way of realigning a name further down the panel. I also note that the Minister had the power to suspend an individual. None of the complainants we met were faced with the invocation of these procedures, but it was agreed that they existed in the background. This did not tally with the autonomous role expected of a Contractor. I was also struck by how the TVIs evolved from being trained themselves to becoming the Trainers themselves for any new TVIs.
My colleagues have remarked that the first claim for employment status was raised by the TVIs in the context of the forthcoming closure of the plant. I find that this set of circumstances prompted an immediate period of reflection to address the inevitable sizeable reduction in income and they believed they were employees capable of securing a compensation payment in line with other colleagues who were made redundant on the PRSI rules. As stated previously both parties paid PRSI. It is not unusual that this period of reflection would preface a Statement of claim.
In conclusion, I have recorded a dissenting opinion in this case based simply on how I found the actual reality of the employment relationship described at the hearings and as borne out in the extensive documentation submitted. I accept that it is very difficult to look back over a considerable period, but for me, the TVIs were part and parcel of the enterprise and it could not have run without them. I found the relationship to be that of an employee rather than a contractor.
17. Conclusion
The Tribunal has found by majority decision that mutuality of obligation did not exist and that consequently the Applicants were not employees of the Minister. Having regard to these findings the Tribunal does not propose to proceed to deal with the other issues on the Issue Paper.
As observed previously in this case “the relationship between the parties was a very unusual one”. There are undoubtedly some features indicative of employment. However having regard to all of the evidence, the Tribunal finds by majority decision, that mutuality of obligation did not exist between the parties and consequently finds that each of the Applicants was not an employee of the Minister prior to October 2004.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)