The Gazette 1987

GAZETTE

JULY/AUGUST 1987

Unfair Dismissals Act, 1977 was not appealed to the Circuit Court. The Court considered Mr. Kelly was not an employee, and thus, did not fall within the scope of the Act. 12 Clarke, J. considered the relationship between the parties and asked a number of questions: — — Does the sports editor have to accept his articles? — Would Mr. Kelly be in breach of contract if he did not provide the newspaper with an article. — Could the newspaper get an in- junction if he gave the article to another journal? The questions were answered in the negative on the basis that each was a free agent. Each was free to accept or not accept work. There was a fresh offer and acceptance on each occasion. Accordingly, there was no contract of service. The Tribune case was also referred to in this judgment and Mr. Kelly was equated with Ronit Lentin, a freelance contributor with the Tribune who was paid for com- missioned work, not necessarily appearing weekly on a rate per word basis. She visited the office

It was held that the claimant a waitress, in the Royal Dublin Hotel was an employee. Her work was controlled by her employer, reason being that over the years of the relationship, the expectation arose of the employee's availability to work and of the opportunity to work. The Tribunal also took the same view in Kelly -v- Irish Press Limited. 10 In this case the claimant was association football corres- pondent for the Sunday Press since 1952. It was contended that he was not an employee as he only worked part-time and had another full time job; he did not have income tax or PRSI deducted from his newspaper earnings. It was determined that his work was an integral part of the business. The Tribunal relied on the High Court decision of Miss Justice Carroll in Re Sunday Tribune (in liquidationJ. 11 The Judge considered a number of classes of newspaper contributors. She considered that a person may be an employee even though employed part-time and employed by different employers. The Irish Press determination under the

such workers are on stand-by to do work as required with no fixed hours or attendance arrangements. More recently UK case law has at- tempted to define their status; un- f o r t una t e l y, the answers are inconclusive. In O'Kelly and Others -v- Trust- house Forte pic, 1 the claimants were 'regular casual' wine waiters. The Court of Appeal considered that as these waiters were carrying on business on their own account, t hey were not emp l oyees. However, in Four Seasons (Inn on the Park) Limited -v- Hamerat, 8 a wine waiter had worked for seven years, was paid for the hours he worked and received no sick pay or holidays. The wa i t er was considered an employee as if he had refused work, future work would have been withheld. In both these cases the Courts looked at the economic realities behind the relationship. The Irish Employment Appeals Tribunal has been less adventurous in comparison to the views in the Trusthouse Forte case. The status of 'permanent casuals' was con- sidered in Byrne -v- Gartan Limited. 9

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