ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00007448

Complaint:

Date of Adjudication Hearing: 1st August 2017

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 41 of the Workplace Relations Act 2015, Section 6 of the Payment of Wages Act 1991 and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant was employed by the Respondent from 24^th May 2016 to 14^th December 2016 and his rate of pay was €15 per hour.

The Complainant was submitting that the Respondent had failed to pay him any holiday entitlement, annual leave and public holidays, during his employment with the Respondent or at the time of the termination of his employment.

Preliminary Issue:                                                                                                                                              A preliminary issue arose.   The Respondent submitted that the Complainant was never an employee of theirs, that he had at all relevant times being a self employed contractor, under a contract of service rather than a contract for service and that accordingly was not covered or comprehended by the 1991 Act and that accordingly the Respondent had no employer obligations to the Complainant.

Summary of Complainant’s Submissions on Preliminary Issue:                                                                                            The Complainant said that he was contacted by the Respondent and offered work.  He said that the Respondent said he was looking for someone to drive a forwarder.  

The Complainant said initially the Respondent wanted him to be a self-employed contractor, with him submitting invoices for payment for work done by him.   The Complainant said he considered this and took advice and he reverted to the Respondent he could not do this for stated reasons.  

The Complainant said that it was then agreed that the Complainant would be employed directly by the Respondent as an employee.   The Complainant said that it was agreed that the Respondent would pay him €15 per hour and pay his taxes.   The Complainant said he was informed that the work may not be full-time; it could be 3, 4, 5 or 6 days per week or indeed on occasions perhaps no days on some weeks.  

The Complainant said that in December he was informed that for stated reasons there would be no work for a coming week.   The Complainant said that he responded that he was due (at least) one week’s holidays and he would have no problem taking a weeks holidays on that week.   The Complainant said that at that end of that week he rang the Respondent and told him that he had not received his holiday pay.   He said that the Respondent told him that he (the Respondent) would contact the Bookkeeper and would work it out.   The Complainant said the Respondent subsequently rang him back and told him that he had contacted the Bookkeeper and the Bookeeper said the Complainant was never an employee and that thus he had no entitlement to holidays or holiday pay from the Respondent.  

The Complainant said that he returned to work on 14^th December and he (again) asked for holiday pay and was told that he would not be getting any holiday pay. He said he then left the employment as he was not willing to continue working for an employer who would not pay him his holiday pay entitlements.

The Complainant answered questions based on a Code of Practice of the Employment Status Group developed by the Department of Enterprise, Trade & Employment, Department of Social, Community & Family Affair, Department of Finance, the Revenue Commissioners, the Irish Business & Employers Confederation (IBEC) and the Irish Congress of Trade Unions (ICTU):

Q1: Is he under the control of another person who directs as to how, when and where the work             is carried out?          A1:   Yes he is, the Respondent.

Q2: Does he supply his labour only?     A2: Yes.

Q3: Does he receive a fixed hourly/weekly/monthly wage?   Q3: Yes a fixed hourly rate of pay

Q4: He cannot sub-contract the work?   A4: No he could not subcontract the work.

Q5: He does not supply material for the job?   A5: No he does not.

Q6: He is not exposed to personal financial risk in carrying out the work?   A6: No he is not.

Q7: Does he assume any responsibility for the investment and the management in the business?   A7: No he does not.

Q8: Does he have the opportunity to profit from the sound management in the scheduling of work or in the performances of tasks arising from the work?   A8: No he does not.

Q9: Works set hours or a given number of hours per week or month?   A9: No.

Q10: Works for one person or for one business?   A10: Yes

Q11: Is entitled to extra pay or time off for overtime?   A11: No he is not.

The Complainant submitted that he was plainly an employee of the Respondent and he sought a decision to that effect.

Summary of Respondent’s Submissions on Preliminary Issue:                                                                       The Respondent submitted that the Complainant was never an employee of theirs and that he was at all relevant times a self-employed contractor, providing a contracted service to them.

The Respondent said that he had been given the Complainant’s name and details as some one who might be interested in some work driving a forwarder and the Respondent offered him such work. The Respondent said that he rang the Complainant and asked him to work as a self-employed contractor and to submit invoices for work done on a weekly basis - the Respondent said that the Complainant said he wished to get advice (from an accountant) about working that way and would get back to him in that respect.   The Respondent said the Complainant rang him back and informed that he could not work that way for stated reasons.   In response to questions the Respondent confirm that he did not inform the Complainant that he could only give him the work as a               self-employed contractor and could not give him the work on any other basis, and that he did not tell the Complainant that he could and/or would not employ him as an employee or withdraw the offer of work.   He confirmed that he did not inform the Complainant at that point that he would not be employed as an employee on a contract of service.

The Respondent said it was agreed that they would pay the Complainant €15 nett per hour and that the Complainant would submit on a weekly basis the hours worked by him and he would be paid on that basis.   He said the Complainant was informed that the work may not always be full-time; it could be 3, 4, 5, or 6 days per week or indeed on occasion perhaps no days on some weeks.            The Respondent said that the Complainant then commenced work for them on this basis and he submitted his hours worked on a weekly basis and was paid on that basis of the hours submitted.

The Respondent said that following a period of one week when the Complainant had no work, the Complainant rang him and stated that he had not received holiday (annual leave) pay for the week despite requesting it and asked why he had not been paid the holiday pay.   The Respondent said that he told the Complainant that he would consult with the Respondent Bookkeeper and get back to the Complainant.   He said that when he consulted with the Bookkeeper he was told that the Complainant was not an employee and that so he had no entitlements to holidays or holiday pay.   The Respondent said that he then rang the Complainant and so informed him.   (The Respondent was unable to say why the Bookeeper - as distinct from the Respondent himself - was deciding why the Complainant was or was not an employee of the Respondent).

The Respondent said that upon his return to work on 14^th December 2016 the Complainant again asked for holiday pay and was again informed that he would not be receiving holidays or holiday pay for the same reason.   The Respondent said the Complainant then left the work and did not return.

The Respondent said the Complainant was never an employee of theirs.

The Respondent also answered the same questions based on the Code of Practice of the Employment Status Group as asked of the Complainant as follows: (the he is the Complainant):

Q1:   Was he under the control of another person who directs as to how, when and where the work was carried out?     A1:   Yes he was, by the Respondent.

Q2:   Did he supply his labour only?   A2:   Yes

Q3:   Did he receive a fixed/hourly/weekly/monthly wage?   Q3: Yes a fixed hourly rate of pay

Q4:   He could not sub-contract the work?     Q4:   No he could not subcontract the work.

Q5:   He did not supply material for the job?   A5:   No he did not.

Q6:   He was not exposed to personal financial risk in carrying out the work?     A6: No he was not.

Q7:   Did he assume any responsibility for the investment and the management in the business?   A7:   No he did not

Q8:   Did he have the opportunity to profit from the sound management in the scheduling of work or in the performance of tasks arising from the work?   Q8: No he did not.

Q9:   Worked set hours or a given number of hours per week or month?   A9:   No

Q10: Worked for one person or for one business?   A10:   Yes

Q11: Is entitled to extra pay or time off for overtime?   A11:   No he did not.

Substantitive Issues:  

Summary of Complainant’s Case:

The Complainant said that he had not received holiday (annual or public) entitlements and/or pay in relation to his employments.

The Complainant had his work book with him at the hearing and he submitted to the hearing the hours recorded there and submitted to the Respondent and paid by the Respondent to him for each day worked by him.

He had worked a total 768.50 hours for the Respondent.

The Complainant sought his annual leave holiday pay based on those hours worked by him.

The Complainant said that in relation to the 3 public holidays that occurred in the relevant (6 month) period he had in fact been paid for one leaving him an entitlement to 2 further days pay.

The Complainant sought a favourable decision.

Summary of Respondent’s Case:

The Respondent said they did not accept that the Complainant worked the hours submitted by him and in particular referred to two specific that they contested the hours stated by the Complainant (the difference in those cases would be no more than 5 hours, which in terms of annual leave would amount to no more than 0.4 of one hours pay).   However in response to questions the Respondent confirmed that they had kept no separate record of the hours worked by the Complainant themselves and had in fact paid the Complainant for the hours submitted by him to the Hearing.

The Respondent also made general submissions that the Complainant had overclaimed for hours worked, i.e. that he had actually not worked all of the hours worked by him.   However, the Respondent confirmed that they had raised no issue at the time or at any time during his employment in this respect or prior to the hearing and they further acknowledged that they had actually paid the Complainant for all the hours submitted by him.

The Respondent also made submissions in relation to matters not covered by a complainant under the Payment of Wages Act 1991 and I will not be referring to such matters in any way.

Findings and Conclusions:

I have carefully considered the evidence and the submissions made and I have concluded as follows.

Preliminary Issue:                                                                                                                                              I note that all of the characteristics necessary for an employee/employer relationship were present in the instant case and I further note that even based solely on the submissions of the Respondent the Complainant clearly was an employee of theirs and in fact an employer/employee relationship existed between the Respondent and the Complainant.

There is no real dispute as to the history and what happened in the instant case.

The following were established as facts at the Hearing.

The Complainant was contacted by the Respondent and was offered work.   Initially the Respondent sought to offer the Complainant the work as a self-employed contractor on a contract for service, whereby the Complainant would submit invoices to the Respondent for work done.   However, following consideration and taking advice, the Complainant informed the Respondent that he could not work on that basis and would only work as a direct employee of the Respondent.   The parties then agreed that the Complainant would be paid at the nett rate of €15 per hour, and that the Complainant would submit the hours worked each week and would be paid on that basis (the same as applies with many if not most employees).   It was agreed that the work would not necessarily be full-time, that it could be less or more than that depending on the needs for the work being performed.   The Complainant did not submit invoices as I understand is the case with self-employed contractors performing work for the Respondent.

The Complainant was totally under the control of the Respondent, who directed how, when and where the work was carried out.

The Complainant supplied only his labour to the Respondent.

The Complainant received a fixed hourly rate of pay from the Respondent.

The Complainant could not sub-contract the work performed.

The Complainant did not supply material for the job.

The Complainant was not exposed to personal financial risk in carrying out the work, nor could be benefit from the sound management of the scheduling or performance of the work carried out by him.

The Complainant did not assume any responsibility for the investment and the management of the business.

The Complainant worked only for one business, the Respondent.

I am completely satisfied and I find that the foregoing demonstrates conclusively that the Complainant was, in the relevant period, an employee of the Respondent.     Accordingly I find that as an employee of the Respondent in the relevant period the Complainant is entitled to have his complaints under the Payment of Wages Act 1991 heard and the Respondent’s submissions in that respect are rejected by me.

Substantitive Issue:                                                                                                                                   I note that there is no dispute that the Complainant did not receive his annual leave or public holiday pay entitlements in relation to his employment with the Respondent.   Accordingly I must find and declare that the complaints under Section 6 of the Payment of Wages Act 1991, in relation to holiday pay are well founded and they are upheld

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to the complaint in accordance with the redress provisions of the same section of the Act.

Based on the above findings I declare that the complaints under Section 6 of the Payment of Wages Act 1991 are well founded and they are upheld by me.

Based on the evidence submitted to me at the Hearing I have decided the Complainant worked 768.50 hours for the Respondent.

Based on 8% of these hours the Complainant is due 61.50 hours annual leave/annual leave pay, which multiplied by €15 per hour equals €922.50c.

Based on the 768.50 hours worked, divided by 29 weeks worked the Complainant’s average weekly working hours was 26.50, this multiplied by €15 per hour equals €397.50 per week and 1/5^th of this is €79.50c per day.   The Complainant is due 2 days public holiday payment in the sum on €159.00c.

The total amount due to the Complainant is €1,081.50c and I require the Respondent to pay him that amount within 6 weeks of the date of this decision.

Dated:   17 August 2017

Workplace Relations Commission Adjudication Officer: Seán Reilly.

Key Words: Unpaid Holiday Pay