ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00003805
Complaint for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00005518-001 | 23/06/2016 |
Date of Adjudication Hearing: 30/11/2016
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 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 stated he was employed from 3rd January 2016 until 15th March 2016. He stated he was paid €2235.00 gross per month and that he worked 30 hours each week. The Complainant stated he was paid cash in hand each week.
The Complainant referred a complaint to the Workplace Relations Commission on 23rd June 2016 alleging the Respondent had breached Section 5 of the Payment of Wages Act, 1991 in relation to
wages of €1915.00 not received – Annual Leave of €332.00 not received.
I note that a complaint under the Payment of Wages Act, 1991 was lodged with the WRC on 27th April 2016 seeking an investigation by an Inspector and I note that a complaint under the Payment of Wages Act, 1991 was lodged with the WRC on 19th September 2016 seeking an investigation by an Inspector in relation to payslips.
I note that by letter dated 16th November 2016 from a named Labour Inspector, provided by the Complainant, shows that the Inspector has investigated the alleged breach outlined in the complaint form and enclosing copies of payslips for the duration of the employment. I was provided with copies of these payslips by the Complainant. However I note that the Payslips provided to me are for week-ending 23rd January 2016 although the P45 states the employment commenced on 2nd January 2016. However my Jurisdiction only applies to Section 5 of the Act. I have no jurisdiction in relation to payslips provided.
Complaints were lodged with the WRC on 19th September 2016 under the Terms of Employment (Information) Act, 1994, Organisation of Working Time Act, 1997 and these complaints are under ADJ 5060 and a Decision has issued in relation to these complaints although the Complaints under ADJ 5060 and the Complaint under this ADJ 3805 were all heard on 30th November 2016.
I further note that the Complainant had made a complaint to the Revenue Commissioners on 29th March 2016. I was provided with the exchange of emails and letters between the Complainant and the Revenue Commissioner and the outcome of this complaint, by the Solicitor for the Complainant post the Hearing and at my request. I note that the Solicitor for the Complainant confirmed that this information had been forwarded to the Solicitor for the Respondent.
I note that following the NERA Inspector Report and the Revenue Investigation the Complainant was provided with a P45 and payslips covering the period from week-ending 23rd January 2016 to 16th March 2016 and I note that these show gross pay and net pay. However I note that the P45 provides a Start date of 2nd January 2016.
I do not have any jurisdiction in relation to complaints submitted to the Revenue Commissioners and/or to the WRC for an investigation by an Inspector of the WRC.
Preliminary Issue – Status of the Complainant.
The Solicitor for the Respondent, in a written submission argued that the Complainant was never an employee of the Respondent Company and was at all material times a self-employed independent Contractor. They further argued that the Complainant’s engagement was for a period of two months approximately.
They also stated that the two letters of reference allegedly provided by the Respondent to the Complainant were not issued by the Respondent and they provided sample copies of Headed Paper used by the Respondent.
The Solicitor for the Complainant argued that the Complainant had not been issued with any Contract by the Respondent. He stated that at all times he was an employee of the Respondent Company and following numerous complaints to his Employer in relation to his wages and Contract of Employment he lodged complaints with the Workplace Relations Commission seeking both an investigation by an Inspector and adjudication by an Adjudication Officer in relation to a number of complaints.
Findings
I note that Langford in The Classification of Workers: Employees and Independent Contractors (1998) States as follows: “The courts have over the years sought to decide the issue by reference to a variety of legal tests, traditionallythe control test” . More recently, the courts have tended to adopt a practical test such as that of economic reality, or to have regard to all the different features of the work relationship and to engage in a balancing exercise in relation to all the various factors. The modern tendency would seem to be not to regard any one issue as conclusive but to look at the whole picture of the work situation”.
Likewise in Sunday Tribune Ltd (1984) I.R. 505 Carroll J stated: “The Court must look at the realities of the situation in order to determine whether the relationship of employer and employee in fact exists, and it must do so regardless of how the parties describe themselves”
There are a series of tests established by the Courts in order to determine the issue.
Contract
The evidence from both Parties was that the Complainant had not been issued with either a Contract of Service or a Contract for Service. Therefore this provides no assistance in determining the issue.
Mutuality of Obligation.
In order for a Contract of Service to exist there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the Employer. As Edwards J in the High Court Case Minister for Agriculture and Food v Barry & Ors (2008), stated “The requirement of mutuality of obligation is the requirement that there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer. If such mutuality is not present, then either there is no contract at all or whatever contract there is must be a contract for services or something else, but not a contract of service”.
I was provided with an exchange of text messages between the Respondent and the Complainant and these clearly show that the Respondent was providing work to the Complainant and the Complainant was accepting the work offered.
I find that on the basis of this evidence the Complainant had a Contract of Service.
Control
I note that the Supreme Court in Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare (1998) stated: “The degree of control exercised over how the work is performed, although a factor to be taken into account is not decisive”.
The Complainant worked as a Chef in a restaurant of the Respondent. There was no dispute concerning this.
Integration
The evidence shows that in the period of his employment the Complainant was fully integrated into the work of the Restaurant.
Taxation/Vat
Following the lodgement of a complaint by the Complainant with the Revenue Commissioners and the provision by the Respondent of payslips to the Complainant which clearly shows that it was the Respondent that deducted Tax, USC, and Employee PRSI from the Complainant.
I find that this is conclusive evidence that the relationship was one of a Contract of Service.
On the basis of the evidence I find that the Complainant had a Contract of Service with the Respondent and as the P45 provided to the Complainant shows this relationship existed from 2nd January 2016 to 16th March 2016.
On the basis of the evidence I decide that the Status of the Complainant is that of an Employee with a Contract of Service with the Respondent.
Payment of Wages Act, 1991.
Summary of Complainant’s Position.
The Complainant stated that he did receive cash in hand by way of Wages since 22nd January 2016. A statement of wages paid and unpaid was provided to me at the Hearing. He stated that he did not receive any wages, either cash in hand or into his Bank Account since the 26th February 2016. The Complainant stated that he had been informed by the Respondent that effective from February 2016 wages would be paid into his Bank Account. The Complainant provided his Bank Statements to the Hearing and these clearly show that no wages had been transferred by the Respondent Company to his Bank Account.
The Complainant stated that he worked 37 hours from 19 to 26th February 2016 – 33 hours from 4th March to 11th March 2016 and 26 hours from 11th to 15th March 2016 but he was not paid for any of these hours. He is also claiming payment of €175.00 which was not paid to him on 26th February 2016.
The Complainant is also claiming payment of annual leave accrued and not paid to him on termination of the employment. The Complainant stated that he worked a total of 301.50 hours during the course of his employment and he is claiming payment of 8% = €361.80.
Summary of Respondent’s Position.
The Respondent Company argued that at all material times the Complainant was a self-employed Contractor.
They confirmed that they had issued a P45 to the Complainant in which it is stated that the employment commenced on 2nd January 2016 and terminated on 16th March 2016.
They also confirmed that they had now provided payslips to cover the period of the employment.
Findings
On the basis of the evidence from both Parties I find as follows: The P45 issued by the Respondent to the Complainant shows that the Complainant was employed from 2nd January 2016 to the termination on 16th March 2016. This also shows that the Respondent deducted tax, prsi and USC from the Complainant in an amount specified.
However I note that the Respondent did not issue Payslips to the Complainant from the start of the employment on 2nd January 2016 but from 23rd January 2016. (Copies provided to me)
The Complainant is claiming he is owed €175. 00 gross week-ending 26th February 2016 - €555.00 gross week-ending 4th March 2016 - €495.00 gross week ending 11th March 2016 and €390.00 gross week-ending 16th March 2016.
Week-ending 26th February 2016. The Complainant stated he worked 25 hours but did not receive any wages as he claims that €200.00 was withheld from him. The Respondent provided a list of cash payments made to the Complainant and which the Respondent stated the Complainant signed for. I note from this note provided that no payment was made to the Complainant week-ending 26th February 2016. I note that the payslip provided from the Respondent shows that the Complainant was paid gross €305.55 and net €220.00 that week. However the Respondent does not have any record of the Complainant signing for receipt of his wages that week and the Bank Statements provided to me by the Complainant do not show any wages paid by the Respondent to the Complainant that week.
I find that the Complainant is entitled to payment of €220.00 net for that week.
Week-ending 5th March 2016. The Complainant stated he worked 37 hours week-ending 5th March 2016. But he received no wages for that week. I note from the note provided by the Respondent to the Hearing that this identified the Complainant is due to be paid €220.00 net. However there is no signature by the Complainant that he received this amount. The evidence in the payslip provided by the Respondent to the Complainant shows he received gross wages of €305.55 and net wages of €220.00. However the Respondent did not provide any evidence to the Hearing in relation to how the net payment of €220.00 was made and the evidence from the Bank Statements of the Complainant shows there were no wages paid into his Bank Account.
I find that the Complainant is entitled to payment of €220.00 net.
Week-ending 13th March 2016. The Complainant states that he worked a total of 33 hours that week but received no wages. I note from the note provided by the Respondent which purports to show the wages paid to the Complainant that there is no entry for this week and the Bank Statements of the Complainant did not show any wages paid to his account for that week.
I find that the Complainant is entitled to payment of €220.00 net in wages for that week
Week-ending 16th March 2016. The Complainant stated that he was not paid his wages for that week and had worked 26 hours in the week. The payslip provided by the Respondent after the employment ended shows that the Complainant was due gross wages of €575.00 and net pay of €276.00. There was no evidence presented by the Respondent to show that the net wages had been paid and the evidence from the Bank Statements of the Complainant does not record any lodgements to his account.
I find that the Complainant is due payment of wages of 276.00 net
Accrued Annual Leave.
The Complainant stated that he worked the following hours –
January 2016 – a total of 86.5 hours
February 2016 – a total of 119 hours and
March 2016 – a total of 96 hours
This is a total of 301.50 hours x 8% = 24.12 x €15.00 an hour =361.80 (I note that a letter of employment and reference issued to the Complainant on 8th March 2016 states that the Complainant was employed from 15th January 2016 and that he was paid €15 an hour taxable). I note that the P45 states the Complainant commenced employment on 2nd January 2016.I also note that the Respondent disputes that this letter of 8th March 2016 was issued to the Complainant.
The Respondent did not provide any evidence of the actual hours worked by the Complainant.
I find that the Complainant is entitled to payment of €361.80 Gross, subject to any lawful deductions, in respect of annual leave due and not paid on termination of the employment on 16th March 2016 according to the P45.
Decision
In accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare this complaint is well founded. I direct the Respondent to pay the Complainant –
€936.00 net in respect of wages due and not paid and
€361.80 Gross, subject to any lawful deductions, in respect of annual leave due and not paid on termination of the employment.
I direct that these sums be paid to the Complainant within 42 days of the date of this Decision.
Date: 20th March 2017