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Whilst reviewing health and safety updates for a paper I am preparing,  I came across the case of Donnelly v LPB Building Services Limited and Bernard  Tansey [2012] IEHC 17 of which the Judgement of Mr. Justice Michael Peart was delivered on 20th January 2012 in the High Court. The case was reported on the courts website in March of this year and was highlighted in this month’s Health and Safety Review.

The key lesson for any employer to learn as a result of this case is that every “relationship” entered into should be property documented whether in the case of an employee or otherwise (i.e. engaging the services of a self employed consultant”. The intention of the parties in any relationship will be closely scrutinised by the courts to determine what the true intention of the parties was irrespective of the “label” parties put on a relationship.

Background

The case concerned a claim by the Plaintiff that he sustained a serious injury to his right eye as he was dismantling a wire fence in his back garden. Although repaired by surgery, the accident left him with visual impairment, an increased risk of developing a cataract and left him more prone to eye infections in the future. In the proceedings the Plaintiff stated that at the date of the accident he was in the employment of the defendants or either of them and had been instructed by the second named defendant to dismantle the fence in question.

The Defendants argued that the Plaintiff was never employed by them and that at the time of the accident the Plaintiff was carrying out the task for his own benefit and in his own time. In any event the Defendants stated that the injury was caused by the Plaintiff’s own negligence.

The High Court determined that the first issue for determination was whether the Plaintiff was in the employment of the Defendants or either of them at the date of the injury.

Plaintiff’s evidence

In the Plaintiff’s evidence, around the time the work commenced, he approached the second named defendant and asked in there was a chance of work. A few days later he was told the work was commencing and to “come along”. The Plaintiff stated that he started to do some general labouring work thereafter and no wage was agreed and that it was a “gentleman’s agreement” The Plaintiff outlined some of the duties he undertook to the Court including a lot of general labouring work. The Plaintiff further stated that he worked for three weeks that way and was paid cash. He further stated that there was no discussion around PAYE or PRSI. The Plaintiff stated that part of the work to be done to his own house and he was instructed by the Second Named defendant to dismantle the fence if he wanted to keep it. Mr. Tansey did not accept this.Despite evidence presented to the contrary on his start date for the job, the Plaintiff remained adamant that he was working three weeks prior to the accident.

Defendant’s evidence

Mr. Tansey stated that he could not have employed the Plaintiff as he had no safe pass and it was a requirement of Ballina Town Council that all personnel working on this renovation project had to have a safe pass. The Defendant stated that he first went on to the site on 4th August 2009 which was the commencement date specified on the Form AF2. Mr. Tansey denied that he ever employed the Plaintiff and that he was hanging around the site at the time. He agreed that he stored some of his equipment in the Plaintiff’s shed. He could not recall what money was given to him but stated that any cash would have been a gesture of goodwill for being allowed to store his equipment in the plaintiff’s shed. He denied that he had ever given the Plaintiff a job or that any cash was for any labour or employment. He stated that he kept a site diary in order to keep a record of who was working on the site any particular day so that he could give necessary information to the his employee, Ms. McDonnell who organised the payment of wages to staff. He stated that he did not notify the injury to Ms. McDonnell as the Plaintiff was not an employee. Ms.McDonnell produced records and noted there was no record of the Plaintiff being employed and that she was never told in relation to it.

Conclusions

The test for the Court to determine was whether on 13th August 2009 the Plaintiff was an employee of the Defendant’s and if so whether the injury sustained by him was in the course of his employment. The key points from Justice Peart’s decision can be summarised as follows:

  • There is no doubt the Plaintiff was seen working around the general area.
  • Justice Peart had no doubt that the records kept by Ms. McDonnell were reliable and that she had never been informed by Mr. Tansey that the Plaintiff was being employed.
  • Justice Peart stated that it was probable that Mr. Tansey may have paid cash to the Plaintiff as a gesture of goodwill for allowing him to store some of his equipment in the Plaintiff’s shed however if this was intended to be wages in return for employment  there is no reason why Mr. Tansey would not have put it through the books in the normal way .
  • Justice Peart also stated that it would not be likely that Mr. Tansey would not inform Ms. McDonnell of the Plaintiff’s employment for insurance reasons.
  • The Court further noted that it was highly likely that Mr. Tansey would not have employed the Plaintiff as it would have constituted a breach of contract with the Town Council as it was required by that contract to employ persons only who have a safe pass.

Justice Peart noted:

“The fact that the Plaintiff may have taken it upon himself to do various jobs around the place is insufficient to establish an employee relationship”.Even if the Plaintiff was employed by Mr. Tansey to do odd jobs around the place, “it does not follow that the taking down of the Plaintiff’s own wire fence in his own garden was something to be done in the course of his employment”.

“Mr. principal conclusion is that the relationship of employer/employee was not created, If it had been the office records would show that”

Justice Peart further concluded that it was something the Plaintiff did for his own benefit and on his own account and that he was satisfied he was never instructed as such to do so as part of the master/servant relationship. The Plaintiff was not given the tool with which to do so by Mr. Tansey. He simply went to the truck and took whatever implement seems to be suitable in performing the task.

The Plaintiff’s claim was dismissed.