The Gazette 1987

GAZETTE

JULY/AUGUST 1987

Temporary and Part-time Employees

T emp o r a ry a nd p a r t - t i me w o r k e r s ha ve b e c ome an i ncreas i ng part of our wo r k f o r c e; pa r t - t ime emp l o yme nt be i ng 6 . 7% of t o t al emp l o yme nt in 1 9 8 3 and f ema l es comp r i s i ng 7 2 % of t o t al pa r t - t ime wo r ke r s . 1 As of 1st Apr i l, 1 9 8 5 , t he t o t al number of pa r t - t ime emp l oyees w a s 6 8 , 9 0 0 of wh i ch 5 1 , 4 0 0 we r e f ema le and 1 7 , 5 0 0 ma l e . 2 The economic recession has resulted in an increasing number un- emp l oy ed, app r ox ima t e ly V« mi l l i on at year end 1 9 8 6 . Thus by necess i ty persons are cons i de r i ng a l t e rna t i ve wa ys and means of wo r k i ng, e.g. being se l f -employed, shorter wo r k i ng we e k s , j ob shar i ng . 3 I ndeed, mo re r ecen t l y, I r e l and 's t wo largest t r ade un i ons — t he I T & GWU and t he FWU I have had an adver t i s i ng c amp a i gn d i r ec t ed t owa r ds pa r t - t ime (and l ower paid) emp l oyees for membe r sh ip purposes. Such c amp a i gn is s i gn i f i cant as t r ade un i ons have su f f e r ed cons i de r ab ly f r om loss of memb e rs due to t he emp l o yme nt s i t ua t i on.

(52 weeks Unfair Dismissals Act, 1977, 13 weeks Minimum Notice and Terms of Employment Acts, 1973 and 1984 and 104 weeks Redundancy Payments Ac t s, 1 9 6 7 - 1 9 8 4 ). Should there be breach of contract (dismissal), the employee has the option of pursuing a claim for wrongful dismissal or claiming under the Unfair Dismissals Act, 1977. Most empldyees claim unfair dismissal as recourse to the Employment Appeals Tribunal is speedy and no costs are involved. Also, the Tribunal can award re-instatement, re-engagement or compensation (as appropriate) under the Act. In deciding whether a person is an independent contractor or an em- ployee the Courts are more inclined towards concluding that a con- tract of service exists. The Courts ask t wo questions (in summary), namely: 1. Who controls the work of thfe employee? The modern work relationship with many skilled employees has rendered this question and the resulting answer rather unsatisfactory. Accord- ingly the Courts have devised a second question. 'Is the employee fully inte- grated into the business?' In reply to this question, the legal status of a number of categories of t empo r a ry employees can be high- lighted. Home Workers In a number of UK decided cases, home workers have been held to be employees. In Airfix Footwear Limited -v- Cope, 6 Mrs. Cope worked at home making shoe heels; the company provided her with tools and issued instructions. She worked a five day week for seven years; was paid a piece rate and there were no tax deductions. She was considered an employee. Casuals There is no definition for this oft used colloquialism. In practice, 2.

The purpose of this article is to consider both the legal status and statutory rights of such workers. The descriptions ' t empo r a r y ', ' casua l ', ' s ho r t - t e rm ', and 'seasonal work' are not legal des- criptions. It is frequently assumed that such employees have no legel rights under common law or p r o t ec t i ve legislation. Thus, resulting in the my th of an employment relationship having no application of the law. Nonethe- less, there are a considerable number of employees who do not fall within the scope of protective legislation (e.g. work less than 18 hours per week). One UK specialist in employment law criticised the fact that so many of these 'marginal' workers fell outside the scope of protective legislation; the reason being that nearly all statutory rights created since the 1960s are limited to employees under a contract of employment (i.e. contract of service). In view of this limitation, it is questionable as to whether such statutory rights should continue to rest on the common law contract of service. 4 The I.L.O. state that approximately 60% of the world's labour force are not effectively protected by employment legislation. 5 Employee or Independent Contractor At common law the duration of a

per son 's emp l oyment is not relevant as to whether he is an employee or not. Thus, so long as he is an employee, a temporary/ part time employee has the same common law rights and obligations as the f u l l - t ime employee. Accordingly, such employee can bring a claim for breach of contract i.e. wrongful dismissal.

by Frances Meenan, Solicitor

Such claims are few. Should breach of contract arise the Courts may require specific performance of the contract (re-employment) but this is very rare, damages are the most likely remedy as the common law permits either party to bring the contract to an end by due notice. Thus damages limited to the notice period may be minimal. If the worker is not an employee the claim would be for breach of commercial contract. If a worker is an employee, protective employment legislation may apply. However, to fall within the scope of the legislation he must be normally expected to work at least 18 hours per week and have the requisite continuous service

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