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Waterford Multi-Port Ltd (in liquidation) v. Atkins [2001] IEHC 120 (31st July, 2001)
THE
HIGH COURT
2000
No. 360SP
IN
THE MATTER OF SECTION 11 (2) OF THE MINIMUM NOTICE AND TERMS OF EMPLOYMENT
ACTS, 1973 TO 1991 AND SECTION 39 (14) OF THE REDUNDANCY PAYMENTS ACTS, 1967 TO
1991
BETWEEN
WATERFORD
MULTI-PORT LIMITED (IN LIQUIDATION)
PLAINTIFF/APPELLANT
AND
DAVID
ATKINS, PHILIP IVORY, RICHARD M GRANT, WILLIAM LAWLOR, WILLIAM WALSH, PATRICK
BREATHNACH, JOHN MURPHY, THOMAS PHELAN, DAVID POWER, JOHN O’MAHONY, DAVID
STARMER, THOMAS POWER AND NIALL GORDON
DEFENDANTS/RESPONDENTS
JUDGMENT
of Mr. Justice Barr delivered on the 31st day of July, 2001.
There
are two problems which emerge in these proceedings:-
- Has
the finding of the Employment Appeals Tribunal as to the nature and
consequences of the respondents’ employment relationship with the
applicant company (now in liquidation) been stated in terms which make clear
the factual and legal basis relied upon in support of the Tribunal’s
decision in that regard?
- Was
the Tribunal entitled to make such a ruling regarding all the respondent
workers in the absence of appropriate evidence regarding the employment history
of each with the applicant company?
1. As
to the first point; when a new dock and container terminal was constructed near
Waterford for the benefit of the Bell Line some 25 or 30 years ago a new marine
business at that port came into existence. A vital facet of that enterprise
was the creation of a viable employment structure relating to dock labour. It
appears that the Bell Line operation was geared to provide regular but not
continuous employment for a panel of dockers, all members of SIPTU. They were
listed and called upon for service in order of seniority as and when required.
During occasional slack periods when the Bell Line had no work for them,
members of the panel were free to take up alternative work for others but on
terms that when called upon by the shipping company they would respond
immediately, failing which they would loose their seniority and go to the
bottom of the list. I understand that this system worked well for many years
during the life-time of the Bell Line and ensured good industrial relations at
the Waterford container terminal. However, through external factors beyond its
control the business of the shipping company went into severe decline. Their
operations ceased to be commercially viable and they went into liquidation. In
consequence the working arrangement as to the employment of the respondent
dockers came to an end and they have claimed appropriate benefits under the
Minimum Notice and Terms of Employment Acts, 1973 to 1991 and the Redundancy
Payments Acts, 1967 to 1991 from the plaintiff/appellant company which had
employed them over the years to service the Bell Line ships until that
operation ended and the Bell group of companies went into liquidation.
2. The
respondents’ claim came on for hearing before the Employment Appeals
Tribunal and it made a determination on 2nd May, 2000 which was duly
communicated to the liquidator of the appellant company. The decision of the
Tribunal is in the following terms:-
“At
the outset of the hearing a preliminary issue regarding the continuity of
service of the claimants was raised by the representative for the respondent.
The Tribunal only heard submissions on this issue at this hearing.
Mr.
Connaughton [counsel], on behalf of the respondent company, Waterford
Multi-Port acknowledged that the claimants were employees for different
periods, each period was separate and distinct, but, disputed their statutory
entitlements on the grounds of lack of continuous service - they were regarded
as casual workers, he said.
Mr.
Lane [of SIPTU] who represented the claimants (two of whom were present, Mr.
Richard Grant and Mr. John Murphy - the remaining claimants were unloading a
vessel which had docked that morning) contended that the claimants, though
their job may vary, were available for work at all times and should be regarded
as employees of the company.
Mr.
Richard Grant explained to the Tribunal that his fellow workers do not work
anywhere else and are available to load or unload a ship at all times. The
general manager would ring each employee, their names taken from a seniority
list, and inform them that work was available. If an employee did not turn up
he would loose his seniority position on the list - a minimum of twenty people
would be guaranteed employment when a ship docked, he said. A copy of the
seniority list in use at the time of the liquidation was submitted to the
Tribunal.
The
Tribunal having carefully considered the evidence of Mr. Richard Grant, one of
the claimants, and the submission on behalf of the respondent determine the
issue as follows:
The
custom and practice of the Waterford Port area, which goes back for quite some
time is, that professional port operatives working at loading and unloading
vessels are engaged from a list based on their position upon that list and in
order of seniority. The aforesaid list contains in excess of 45 people and the
position of both claimants who appeared before the Tribunal are as follows:
Mr.
John Murphy is placed at No. 16.
Mr.
Richard Grant is placed at No. 21.
The
process of engaging these people to perform their work is that they are
telephoned and instructed to appear for work. On the list in question is a
contact telephone number for each and every person appearing on same. The
evidence was that the first 20 or 30 appearing on the list were nearly
guaranteed work when a vessel required loading or unloading, in fact evidence
suggested that many more people could hope to be profitably employed if a
vessel required loading or unloading.
In
reaching its decision the Tribunal was mindful of the fact that those appearing
on the list would have to ensure their availability. If they failed, refused
or neglected to make themselves available the sanction was that they would be
placed at the bottom of the list. In this regard the Tribunal was conscious
that, with a list of 60 people it would be quite some time before, on the one
hand, getting work, and, on the other hand moving up the list. Therefore it is
reasonable to contend that the person who may be working elsewhere or
performing other chores would have to drop everything to make his way to the
waiting vessel. This scenario certainly was not contested by the respondent
and the Tribunal feels that if people on the list wanted to ensure their
employment they must certainly make themselves unattractive to other employers.
Accordingly, the Tribunal believes that the claimants in this particular
instance were employed by the respondent company, and having made that
determination in respect of the two claimants who appeared before the Tribunal,
they are entitled to benefit by virtue of their status.
In
the instant case the Tribunal holds in favour of the [i.e., all] claimants and
they are entitled to the minimum notice and redundancy payments as provided by
the respective legislation.”
3. I
have no doubt that in deciding on the claimants’ entitlement or otherwise
to benefits under the termination of employment statutes the Tribunal was
entitled to have regard to the special nature of the employment relationship
between the applicant and the respondents over the years, and to take into
account the overall objective of the arrangement i.e., to provide a viable
structure for the provision of dock services for the Bell Line at its terminal
when required and to do so in a way which was advantageous to the dockers in
question. In the special circumstances the lack of continuity of employment
might not necessarily be fatal to the respondents' claims. However, it seems
to me that in order to adjudicate on such claims the Tribunal would require in
each case evidence, including appropriate employment records (if available),
specifying over, say, a five year period prior to the decline of the Bell Line
business, the employment history of the respective claimants. That information
would be necessary in order to determine the validity of each claim.
4. In
the event the Tribunal has determined all of the respondents’ claims
without the benefit of such evidence. The proper course in the circumstances
is that the claims should be remitted to the Tribunal for the purpose of
receiving the requisite evidence and deciding each claim on its merits in the
light thereof.
© 2001 Irish High Court
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