FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : JOHN O'CONNOR (REPRESENTED BY EOGHAN O'SULLIVAN, B.L., INSTRUCTED BY KIERAN T FLYNN & CO., SOLICITORS) - AND - ANATOLIZ AIZBEL (REPRESENTED BY SIOBHAN PHELAN, B.L., INSTRUCTED BY MAC GUILL & CO., SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Decision of a Rights Commissioner r-125207-mw-12/GC.
BACKGROUND:
2. This case is an appeal by the Employer of Rights Commissioner's Decision No: r-125207-mw-12/GC. The issue concerns the Worker's claim that he was paid less than the national minimum wage when the number of hours and days he worked per week were taken into account. The dispute was referred to a Rights Commissioner for investigation. The Rights Commissioner's Decision issued on the 31st Novemberber 2012. The Rights Commissioner found in favour of the Worker and required the Employer to pay arrears of wages in the sum of €29,137.83. On 7th December 2012, the Employer appealed the Rights Commissioner's Decision to the Labour Court in accordance with Section 27(1) of the National Minimum Wage Act, 2000. A Labour Court hearing took place on 12th April, 2012.
The following is the Court's Determination:-
DETERMINATION:
This matter came before the Court by way of an appeal by Mr. John O’Connor against the Decision of a Rights Commissioner in a claim taken against him by Mr. Anatoliz Aizbel under the National Minimum Wage Act 2000 (the Act). The Rights Commissioner awarded the Complainant arrears of pay under the Act in the amount of €29,137.83.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr. John O’Connor will be referred to as “the Respondent” and Mr. Anatoliz Aizbel will be referred to as “the Complainant”.
The Complainant,a Lithuanian National,claims to have been employed as a Farm Labourer on the Respondent’s farm from 10thMay 2010 until 11thSeptember 2011. He claims that he was underpaid by the Respondent in terms of the minimum wage prescribed by the Act during the course of his employment with the Respondent.
The Respondent denied that the Complainant was ever employed by him.
The Court is satisfied that Section 23 has been complied with.
Summary of the Complainant’s case
Ms Siobhán Phelan B.L., instructed byMacGuill & Co., Solicitors, on behalf of the Complainant,stated that the Complainant’semployment was arranged by his son's acquaintances. She said that while he lived on the farm, theComplainantwas required to startwork at 6.30am or 7.30am and finish work at 6.30pm or 7.30pm and worked seven days a week without a day off. He was given an hour for lunch each day between 1pm and 2pm.
TheComplainantlived independently in Cashel from the end of November 2010 until 20thMay 2011. During this time he would drive to work and his day would begin at 8am. He would finish work at 7.30pm or 8pm during this period.
Ms Phelan said that theComplainantwas paid weekly, in cash or by cheque, by the Respondent. TheComplainantdid not have a bank account throughout this period and cheques received were cashed in a bank in Cashel.
Ms Phelan told the Court that during the first two weeks of employment theComplainantwas paid €100 per week. In the third week he was paid €150. On the fourth week his pay increased to €160.The rate of pay remained at €160 per week until the 5thJanuary 2011 when it was increased to €l80 per week. Sometime in March or
April 2011 the Respondent began to pay him €200 per week. TheComplainant’swages remained at €200 per week for the rest of the time he spent working on the farm although on three occasions he was paid an extra €20 i.e. €220 per week.
Ms Phelan disputed the Respondent’s contention that the Complainant was never an employee and that he was simply allowed to live in a guesthouse on the farm for the period outlined and was paid only sporadically for work carried out such as chopping wood for the Respondent's house or clearing stones from a field on the Respondent's brother's farm.
Ms Phelan stated that a de facto employer/employee relationship arose between the Respondent and theComplainant. Ms Phelan said that theComplainantat all times understood that he was working for the Respondent alone. He took orders directly from the Respondent (albeit that they had to be translated by other employees) and he received his pay directly from the Respondent.
Summary of the Respondent’s Position
Mr Eoghan O’Sullivan, B.L., instructed byKieran T. Flynn & Co., Solicitors,, on behalf of the Respondent, rejected the entirety of the Complainant's claimand denied that it had any liability to the Complainant under the Act. He said that the Complainant was not an employee of the Respondent and he did not perform the duties alleged by him. Mr O’Sullivan said that on a handful of occasions during the currency of his occupation of a dwelling owned by the Respondent, the Complainant carried out small jobs and this was always done following an invitation by the Respondent rather than a directionand an immediate payment was made to him.
The Respondent is 69 years of age and is a retired farmer. The family farm is a dairy farm. The Respondent’s son has owned and operated the farm since in or around March 2010.
Mr O’Sullivan said that a two bedroomed apartment dwelling was situated on the farm and over the years the Respondent and his son have made this available free of charge to persons who work on the farm. These persons are permitted to reside in the dwelling with their family and occasionally with friends. All utility bills were paid for by the Respondent.
Mr O’Sullivan stated that in mid-2010, besides his son the farm employed one person on a full-time basis – Mr Radostan Garlicki, a Lithuanian. He said that the Respondent did not require any additional assistance as both were able to fulfil all of the farm's requirements. Mr Garlicki lived in the apartment on the farm and at the relevant time a friend, who was a plumber, was out of work recuperating from a broken leg was also staying in the apartment.
Mr O’Sullivan stated that in early September 2010 the Respondent became aware that the Complainant had moved into the apartment on the farm. He was told that as the Complainant had been living on the streets of Cashel and was in need of a place to stay Mr Garlicki had invited him to stay on the couch in the house while he found alternative accommodation.
Mr O’Sullivan stated that the Respondent had no difficulty with Mr Garlicki allowing the Complainant to stay in the apartment in those circumstances and he resided there until July 2011.
Mr O’Sullivan stated that at no stage during this period was the Complainant employed by the farm as a Farm Labourer. He said that he was free to spend his days as he saw fit. The Complainant was regularly seen by the Respondent cutting timber for use by residents of the apartment in the wood-burning stove. Mr O’Sullivan said that on approximately two occasions during his occupation of the apartment dwelling, the Respondent asked the Complainant to cut timber for him and his wifefor use in their own home. This occurred during the winter and on each occasion the Respondent paid the Complainant the sum of €50. Mr O’Sullivan said that this chore would have taken approximately four to five hours and the Complainant was always happy to do this job.
Mr O’Sullivan stated that in or around May 2011 the Respondent approached the Complainant to ascertain whether he was interested in carrying out a job for him. Some stones needed to be cleared from a field on his brother’s farm. The Respondent paid
him €300 for the job which took three to four full working days (24 - 32 hours) to complete.
Mr O’Sullivan stated that the Respondent regularly asked the Complainant how his search for alternative accommodation was progressing and he was continually told that he could not find any. The Respondent felt sorry for him and permitted him to continue to reside in the dwelling.In July 2011 the other residents of the dwelling complained to the Respondent about the Complainant's continued occupation thereof and the Respondent informed him that he would have to leave which he did in July 2011.
In assessing the nature of a contract between parties, it is well established that
the first issue to be considered is whether there is a mutuality of obligation
between the parties.As Mr Justice Edwards stated inMinister for Agriculture
and Food v Barry&Ors[2008] IEHC 216:-
- "the requirement of mutualityofobligation is the requirement that there must be mutual obligations on the employerto provide work forthe employeeand on theemployee toperformwork for theemployer.Ifsuch mutualityis not present,then either thereis no contractatallor whatever contract thereis must be a contract forservices or somethingelse,but not a contract of service."
Mr O’Sullivansubmittedthat the Complainant was not employed bythe Respondent
from 10thMay2010 to 11thSeptember2011 and that he did not work twelve hours per day,seven daysperweek,as he alleges. He said that the Complainantnever carried out any of the duties ofa Farm Labourer for or on behalf of the Respondent. Rather,what occurred was that on a small number of occasions during the ten-month period during which the Complainantresided in the Respondent's property,the Respondent
approachedhim and offered to pay him in exchange for a defined service.On each such occasion the Complainant chose to agree to the offer made and was paid a fee which exceeded the minimum due to him under the Act for the work done. With the exception of these particular occasions, the Respondent was free to spend his time as he wished. He said that the Complainant regularly did chores for the other persons who were resident in the property and the Respondent was of the view that he may also have been carrying out contract work in Cahir at the time.
Position of the Parties
The Court heard oral evidence from the following:
On behalf of the Complainant: - the Complainant himself, Mr Yevgeniy Usov and Mr Janis Skrastins.
On behalf of the Respondent: - the Respondent himself, Mr Denis O’Connor, Ms Marta Garlicki and Mr Jacek Wasik.
Summary of the Complainant’s evidence
The Complainant, with the assistance of an interpreter provided by the Court, told the Court that he came to Ireland on 19thMay 2007, his son was living in Ireland at the time, and he worked in construction until December 2008. Thereafter he was living in a house which he had to vacate in 2010 at which point he was homeless and his son’s friend, Ms Martha Garlicki, organised for him to stay at the apartment on the farm. He told the Court that the Respondent gave him instruction on what duties to carry out and that he worked on the farm milking cows, cleaning out, repairing fences, reconstructing a garage/shed, clearing rocks from a field, helping with dehorning and vaccinating the cows and assisting with calving. He also said that he worked on clearing out a duck pond in front of the Respondent’s house. He said that he milked 350 cows each morning and evening and worked from 7.30am until up to 8.00pm every evening, seven days per week, with half-an-hour for lunch.
He said that he bought a car in or around September 2010 and then left the farm dwelling and in November 2010 to move into an apartment in Cashel. When his car was confiscated in May 2011 he moved back to the farm dwelling until September 2011. He said that as it saved on rent to live on the farm he was able to send money to his son in Lithuania who was very ill at the time.
The Complainant told the Court that usually he was paid in cash and his weekly payment commenced at €100 gradually moved up to €200 per week by March or April 2011. He said that he received three €100 cheques at end of August beginning of September 2011 which he cashed in the bank in Cashel and sent the money by Western Union to Lithuania.
Summary of Mr. Yevgeniy Usov’s evidence
Mr. Yevqeniy Usov worked with Parish Life Assurance, Cashel, and gave an account of meeting the Complainant in relation to selling him life assurance. Mr. Usov told the Court that he had an arrangement to meet the Complainant one day sometime during the summer of 2010. He met the Complainant at a laneway near the farm. The Complainant would not get into his car as he was dirty so he drove behind him back to the farm. Mr. Usov said that he assumed from the Complainant’s clothes that he was working.
Summary of Mr Janis Skrastins’evidence
Mr Janis Skrastins told the Court that he had been living in Ireland for 11 years. He said that he knew the Complainant’s son and had met the Complainant in 2009 when his son was sick. When the Complainant’s son died in Lithuania Mr Skrastins offered to help the Complainant in whatever way he could and gave him lifts from the farm to go shopping in Cashel. He told the Court that he did not know whether the Complainant was working or just living on the farm as he never saw him working on the farm but he said that the Complainant would change his clothes when he came to pick him up from the farm.
Summary of the Respondent’s evidence,
Mr John O’Connor told the Court that he had been farming on his 150 acres of land for 50 years and had retired in 2010 when he was 66 years old and had handed the farm over to his son, Mr Denis O’Connor. He said that he had developed the farm from initially having 70 cows to eventually having 130 cows. He said that the farm now had a reasonable quota and milked approximately 150 cows.
Mr O’Connor denied the Complainant’s contention that he was employed as a Farm Labourer on the farm.
Mr O’Connor said that in September 2010, Mr Radostan Garlicki, a full-time Farm Labourer employed on the farm who resided in the dwelling apartment, brought the Complainant to live in the apartment. Mr O’Connor said that at that time Mr Jacek Wasik, a friend of Mr Garlicki’s, was also staying in the apartment convalescing from a broken leg. He said that Mr Garlicki’s sister often came to visit her brother in the evenings and she sometimes would bring their uncle and often cooked meals for them. When questioned about this arrangement the witness said that he had no problem with Mr Garlicki having friends to stay.
Mr O’Connor stated that he had real difficulty communicating with the Complainant due to language difficulties, however, he did ask him to chop some wood for the farm house on two occasions as he was already chopping wood for the apartment. Mr O’Connor said that he paid the Complainant €50 on two occasions for completing this task.
Mr O’Connor told the Court that on 17thDecember 2010 he had a replacement knee operation and had not been active either before or after this operation for a number of months.
Mr O’Connor stated that he had rented a field from his brother which had been re-seeded and needed stones removed. He asked the Complainant to carry out this work in August 2011 and as he expected the job to take approximately four to five days he agreed to pay him €300 and the Complainant was free to carry out the work within the following number of weeks as it suited him. Mr O’Connor gave the Complainant three cheques of €100 each at the end of August/beginning of September 2011.
Mr O’Connor said that there was no duck pond in or around the farm but that there was a fountain, however, he refuted the Complainant’s contention that he had done some work on it.
Summary of Mr Denis O’Connor’s evidence
Mr Denis O’Connor told the Court that he took over the running of the farm in March 2010 from which time his father Mr John O’Connor ceased doing most of the work on the farm. Mr Denis O’Connor also denied the Complainant’s contention that he was employed as a Farm Labourer on the farm.
Mr Denis O’Connor stated that he milked between 150 to 160 cows twice per day and he said that between 40 and 50 calves were born between October and November each year. He said he worked full-time on the farm along with Mr Garlicki. In the winter months when the cows were housed indoors, milking commenced at approximately 7.45am, they were fed using a diet feeder and an automatic scraper system was used to clean out the cow-house. He said that all milking and feeding was completed by lunchtime each day. The afternoon work comprised mainly of machinery work, spreading fertilizer or spreading slurry and the second milking usually commenced by 4.15pm until 6.00pm. Therefore, he submitted that there was no requirement outside of himself and Mr Garlicki for any additional labour on the farm.
Mr Denis O’Connor told the Court that the Complainant came to live in the farm apartment in the summer 2010. Mr Garlicki had invited him to stay as he had nowhere else to stay at the time.
Under cross-examination Mr O’Connor stated that he lived in Cashel from May 2010 until September 2010 which was an eight-mile journey to the farm. He subsequently built a house on the farm. He said that it was feasible for him to monitor progress during the calving season through the use of cameras, monitoring by his father and occasional spot-checks when necessary.
Mr O’Connor said that he had no dealings with the Complainant who just lived in the apartment on the farm. He refuted the Complainant’s contentions that he worked on a duck pond as he said that there was no pond on the farm and neither was there any garage/shed reconstruction work on the farm. He said that contractors were brought in to make silage each year and hay-making usually took up approximately one to two days per annum.
Summary of Ms Marta Garlicki’s evidence
Ms Marta Galicki told the Court that when her brother, Mr Radostan Garlicki, worked and lived on the farm she often went out to visit him, to do his shopping and to cook meals for him. She said that she had been friends with the Complainant’s son and became aware that the Complainant was sleeping in his car as he had nowhere else to sleep so she asked her brother if he could stay at the apartment dwelling on the farm.
Ms Garlicki told the Court that the Complainant never worked on the farm. She said that the Complainant slept on the couch in the kitchen of the apartment as her brother had one bedroom and Mr Jacek Wasik was in the second bedroom. She told the Court that her brother returned to live in Poland when he left the farm in April 2011 and that she had not returned to the farm since.
Summary of Mr Jacek Wasik’s evidence
Mr Jacek Wasik told the Court that he lived on the farm from 11thMay 2010 until November 2010 as he was recuperating from a broken leg and his friend, Mr Radostan Garlicki, provided him with a room in the apartment on the farm. He said that while he was there Mr Garlicki got up around 6am and the Complainant got up between 10.00am and 11.00am. He said that the Complainant did not work on the farm.
Conclusion
Having evaluated the evidence tendered the Court has come to the conclusion that the version of events given by the witnesses who gave evidence on behalf of the Respondent is to be preferred over that given by the Complainant. The Court found that the Complainant, despite being provided with a Lithuanian interpreter, found it very difficult to describe with any clarity details of the duties he performed on the farm. The Court regards it as fundamental that the Complainant did not know the number of cows milked each day and he was insistent that there were between 350 and 400 cows on the farm in addition to the number of calves. He was insistent that he worked a twelve-hour day seven days per week which the Court finds difficult to accept when there was no dispute that Mr Denis O’Connor and Mr Radostan Garlicki were employed full-time on the farm.
Furthermore, the Complainant stated that he received all his instructions on the farm from Mr John O’Connor who had informed the Court that he was no longer actively involved with farm work after March 2010 and who in any event was out of action for a long number of months surrounding the time he had his knee replacement operation in December 2010. Under cross-examination the Complainant failed to identify the fact that Mr John O’Connor was inactive during this time and that he had undergone knee surgery.
The Complainant provided evidence to the Court in the form of receipts for the Western Union transfers to his son in Lithuania. These show that he transferred €100 on three occasions 15thAugust 2011, 25thAugust 2011 and 5thSeptember 2011. This coincides with the information provided by Mr John O’Connor that he paid him three cheques to the value of €100 each at the end of August/beginning of September 2011. The Complainant was unable to produce evidence of payments made by the Respondent at any other time.
The Court is not satisfied that the Complainant has in any way proved that he was employed by the Respondent, he has not provide any evidence to indicate that there was mutuality of obligation as between himself and the Respondent for the periods in question. Accordingly, the Court does not accept that the Complainant was an employee on the farm from 10thMay 2010 until 11thSeptember 2011 as outlined in his submission.
Accordingly, the Decision of the Rights Commissioner cannot stand.
Determination
The appeal is allowed and the Decision of the Rights Commissioner is set aside.
Signed on behalf of the Labour Court
Caroline Jenkinson
14th June, 2013______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.