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GAZETTE
JULY/AUGUST 1987
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
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
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
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