ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000476

Complaints for Resolution:

Date of Adjudication Hearing: 08/03/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Complainant’s Submission and Presentation:

The Complainant is a French National. He stated that he was employed as a Floor Manager at the respondent restaurant from 27^th May 2015 to 28 September 2015. The complainant stated that he was employed in the run up to the opening of the respondent restaurant which was due to open on 24^th July 2015 but was delayed by 6 weeks. He was approached by the respondent on 27^th May to work at the Café as he had a wealth of experience in the catering industry.

The complainant furnished copies of a series of texts and phone records to the hearing from which the chronology of the claim was set. On 29^th May, he was asked by the respondent to furnish his employment details of P45 and PPS number and the wages was recorded as €10.50 per week. It was the complainant’s case that he was actively engaged in the run up to the opening by:

1 Being asked to assist at interviews.

2 Establishing and Operating a Facebook Page for the business.

3 Liaisons with Drinks Companies and Suppliers.

4 Frequent Text contact with the respondent and daily contacts in the run up to the opening.

On June 24^th, the complainant received a text from the respondent confirming that planning had been granted and that extra staff was now being sought. Throughout July and August, the complainant was actively involved on a Consultancy basis, advising on the start up requirements. He left his job on 17 July in preparation for the commencement of his floor manager role at the Café

When the Café opened on September 3^rd, the complainant was dissatisfied with the operation of the business and he stayed until September 28, when he resigned.

The Complainant contended that he was not given pay slips or furnished with a contract. He contended that he was owed:

€360 for contact time with the suppliers

€485.40 for contact time leading up to the opening.

€52.50 for time worked on Facebook

€500 for inconvenience and travel

Five Payslips were furnished to the hearing by the respondent covering the period 6 September to 4 October inclusive .. The total monies received by the complainant were €1,916 in salary. The complainant contended that the respondent owed him between €2,563- €2633 in unpaid wages.

The complainant’s representative submitted that the complainant had been misled by the respondent. He had been promised a job of Floor Manager which turned out to be a Café Operator position. His enthusiasm had been taken advantage of and he had been unfairly treated. He had put his life on hold to support the restaurant, including resigning his job on 17 July and the complainant was significantly out of pocket. He contended that he was led to believe, by the respondent that he would be paid for all hours worked .

Respondent’s Submission and Presentation:

The respondent disputed the entire claim. She was new to the business and understood that the complainant had volunteered to assist in the preparation for the opening of the café as a friend. She confirmed that he had given his opinions on the start up requirement but overall, this would have totalled

Facebook hours not quantifiable as her daughter was joint administrator.

Some random hours .

There was no formal business relationship with the complainant until he formally commenced work on 3 September and he had been paid for all hours worked from then. The respondent confirmed that there was a lot of upheaval in the run up to the opening of the business, through delays in planning and organisation of staff, but that it would be unfair for the Adjudicator to infer that an employment relationship had existed prior to 3 September, 2015. The respondent confirmed that the record of the texts submitted at the hearing was accurate and there was a delay with distribution of payslips .

She contended that had the complainant remained at the business, that he too would have received a contract of employment as she had issued these during the second month of opening to all staff.

The respondent confirmed that the working relationship between her and the complainant broke down over the “ Floor Manager “ issue but that there were a number of challenges on the opening of the business . The respondent stated that she did not have the funds to satisfy the complainant’s claim and re-affirmed the rejection of the claim. The respondent stated that the complainant walked out of employment .

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act,Section 6 of The Payment of Wages Act and Section 7 of the Terms of Employment ( Information) Act,1994.

Issues for Decision:

The issue for decision is whether the complainant is determined to have been in the employment of the respondent from 27 May 2015 and whether his claims can succeed?

Legislation involved and requirements of legislation:

1 Payment of Wages Act 1991

The Payment of Wages Act, in section 1(1), defines wages as:

“Wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a)       any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b)       any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice…

Section 1(b) of the Payment of Wages Act, 1991 defines a contract of Employment for the purposes of the Act

.” Any other contract whereby an Individual agrees to work with another person to do or perform personally any work or service for a third person, whose status by virtue of the contract is not that of a client or customer of any profession or business undertaking carried on by the individual and the person who is liable to pay the wages of the individual in respect of the work or service shall, for the purposes of the Act be his employer. Whether the contract is express or implied and if express, whether it is in oral or in writing “

2 Terms of Employment (Information) Act 1994

Section 3(1) of the Act

“ An employer shall, not later than 2 months after the commencement of an employees employment with the employer, give or cause to be given to the employee a statement in writing containing the particulars of the terms of an employee’s employment “

Section 3(2) of the Act outlines:

“A statement shall be given to an employee under subsection (1) notwithstanding that the employee’s employment ends before the end of the period within which the statement is required to be given”

Section 3(5)2 gives direction on the retention of same document by the employer for a period of a year thereafter.

Decision:

I have given careful consideration to the party’s written and oral submissions and I find this to be a complex issue. I appreciate the difficulties that both parties found them in. On the complainant’s side, he understood that he had a job commencing on 24^th July, with a run in period for which he would be paid. On the respondent side, all roads led to the set up of a new business and the consequent preparations .There is a complete absence of documentary evidence from May 27^th up to September 3^rd and this is a key omission in the case. In addition there is clearly an over reliance on informal contacts which both parties recollect in a different manner.

I must apply the Law to the facts of the case.

1 Payment of Wages Act, 1991, claim

On May 29, the complainant received a text from the respondent:

“Hi … to get the ball rolling and to organise the pay system .Indeed your P45 and PPS number. Your Wage is €10.50 gross per hour. Regards ….”

The complainant agreed to forward his PPS number but he stated that “I won’t be able to get you my P45 until I start with you ……”

I have sought to ascertain what the intention of the parties was at this stage. I conclude that the complainant had a justifiable expectation that he was about to be hired by the respondent on an agreed wage. He furnished his PPS number on 14 June. However, I cannot ascertain that he actually commenced work up until the respondent issued an invitation for him to attend the workplace on June 23^rd.

I find that the complainant commenced work with the respondent on June 24, 2015, when he attended the premises under the direction and control of the respondent. I am satisfied that he maintained a casual employment relationship with the respondent from that date up until September 3, 2015, a period of 10 weeks , which permits me to interpret that a legally enforceable mutual obligation was established .

The record of texts confirm that ongoing contact between the complainant and the respondent was maintained throughout this period , where both parties were engaged with Facebook set up, interviews and other preparations for the opening of the business . It is clear that the complainant worked under the direction and control of the respondent. Section 1 of the Act , applies .

I find therefore that Section 5(6) of the Act applies and the complaint is well founded. There is a dispute in relation to the number of hours worked by the complainant. The Payment of Wages Act does not have provision for Inconvenience /travel, therefore, I cannot award redress on this. I order that the respondent pay the complainant:

1 €360 in wages for time spent in liaison with suppliers.

2 €52 in wages for time spent on Facebook construction.

3 €405 in wages for time spent in direct preparations for the opening.

Total: €817.00 in breach of Section 5(6) of the Act.

I do not accept the “voluntary” status of the complainants input into the business. The Café was in active preparation for opening in the marketplace and this work had an implied promissory content.

In Re Hall & Baker [1879] CHD538, M.R. Jessel observed :

“If a man engages to carry a box of cigars from London to Birmingham, it is an entire contract, and he cannot throw the cigars out of the carriage half-way there, and ask for half the money; or if a shoemaker agrees to make a pair of shoes, he cannot offer you one shoe and ask you to pay half the price.”

The respondent, in this case is obligated to follow through on her undertaking of work given to the complainant on 29^th May,2015.

2 Terms of Employment (Information) Act 1994

Based on the evidence adduced at the hearing, that statements of terms of employment issued to the respondents employees during the month of October. I find that the respondent has breached Section 3(1) 3)(2) and 3(5) of the Act .

I find that the complaint is therefore, well founded and I award the complainant two weeks pay in compensation for those breaches .I calculate this to be €745.00.

In conclusion, I award the total redress, therefore, of €1,562.00 in compensation for the collective breaches of both Acts.

Dated:  16/06/2016