Complainant

Respondent

AnonymisedParties

Plasterer

Plastering and Construction company                                                                                                    

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-00013247-001

23/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00013247-002

23/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00013247-003

23/08/2017

The complainant, a qualified plasterer was alerted to the existence of work with the respondent by a colleague plasterer.

He was interviewed by the respondent director on the 24/3/17 who offered him employment as a plasterer. The respondent director advised that he would be paid €180 per day, that the hours of work were fixed at 7.30 – 4.30pm with a break of 30 minutes at 10.30 am and at 1 pm.

The complainant commenced employment with the respondent on 24/3/2017.

The complainant was dismissed for the quality of workmanship by the respondent on the 6/4/17. He was not paid for the 11 days on which he worked due to alleged inferior work.

He presented 3 complaints to the WRC on 23/8/17.

1.CA -00013247-001: Complaint under section 6 of the Payment of wages Act, 1991.

Preliminary issue.

The complainant advises in his complaint form that he was offered work on a self-employed basis only. The complainant’s representative advises that this is a ruse sometimes used in the construction industry to enable employers to evade their obligations to employees and to the state. He states that this is what happened in this case.

In demonstrating why this complainant is an employee of the named respondent the complaint’s representative submitted written and oral evidence. He did so as though the respondent was not in attendance at the hearing, and submitted no evidence in advance of the hearing, the representative was outlining the context in which the respondent denied that he was the employer of the complainant and maintained that the complainant was a sub-contractor. This is denied by the complainant who advises that he is an employee and entitled to enjoy the protections offered under the 3 statutes set out in his complaint.

The complainant has no written contract of employment.

The complainant submitted legal arguments as to why the complainant should be considered an employee. In Henry Denny and Sons (Ireland) Ltd v Minister for Social Welfare, 1997 IESC. Keane J stated at page 50 …. “in general, a person will be regarded as providing a her or her service under a contract of service and not as an independent contractor where he/ she is performing those services for another person and not for himself or herself. The degree of control exercised over how the work is to be performed, although a factor to be taken into account is not decisive. The inference that the person engaged in business on his or her own account can be more readily drawn from where he or she provides the necessary premises or equipment or some other form of investment, where he or she employs others to assist in the business and where the profit which he or she derives from the business is dependent on the efficiency with which it is conducted by him or her”.

Keane J went on to observe that the complainant in that case -a demonstrator drawn from a panel of demonstrators in a supermarket

“was provided with equipment and clothing by the appellant…. she made no contribution financial or otherwise of her own and her remuneration she earned was solely dependent on her providing the demonstrations at the time and places nominated by the appellant……. she was not in a position by better management and resources to ensure for herself a higher profit. She did not as a matter of routine engage other people to assist her in her work; where she was unable to do the work, herself she had to arrange for it to be done by someone else, but the person in question had to be approved by the appellant”.

The complainant’s representative contends that the circumstances of the within case match those of the above case. He met the respondent director on 24/3/17 who established that he was available to commence work immediately, offered to pay him €180 a day, set out the working hours to be 7.30-4.30, with a 30-minute break at 10am and at 1pm. The respondent supplied the complainant with materials and equipment to do the work. The complainant had no responsibility for the ordering of materials for the site. He could not benefit from providing cheaper materials or sourcing cheap labour or work more hours to finish the job in a shorter time frame. The respondent director and site manager instructed him at all times as to what he was to work on and moved him from one task to another as required.

The fellow plasterer who alerted him to the availability of work with the respondent did not direct him in any way. As is common practice in the plastering trade, a designated plaster is given wages by the respondent to distribute amongst a pool of plasterers and this happened with the complainant.

A dispute arose regarding the finish on a wall. The respondent advised that he was unhappy with the work. He was dismissed on the 6/4/17.

He advises that he was owed €1,980 for the 11 days’ work which he provided to the respondent. He was paid €600 and the outstanding amount of wages owed to him is €1380.

The union representing the complainant made several attempts to secure outstanding monies for the complainant. The respondent’s solicitor contacted the union representative and made an offer as a full and final settlement. This only covered some of the unpaid wages and was rejected by the complainant and his fellow plasterers. A meeting took place between the union and the respondent’s solicitor on 22/6/2017 where the solicitor advised that the respondent had not received all monies due to them from the main contractor and which were required to cover the costs of the complainant’s wages.

2.CA.-00013247-002.

The complainant’s representative withdrew this complaint.( The complainant has less than one month’s continuous service).

3. CA-00013247-003. Complaint under section 27 of the Organisation Of Working Time Act, 1997.

The complainant advises that he did not receive payment for holiday entitlement for the period 24/3/17-6/4/17 during which he worked 11 days and for which he advises he is owed €247.

He advises that he is owed a day’s pay in respect of the public holiday which fell on 2/4/17, Easter Monday.

1.CA-00013247-001.

The respondent did not attend, nor did he submit any evidence in advance of the hearing.

2.Ca -00013247-002.

The respondent did not attend or submit any evidence in advance of the hearing.

3.-00013247-003

The respondent did not attend or submit any evidence in advance of the hearing.

1.CA-00013247-001.

Contract of Service vs Contract for services.

It is necessary to identify which contract governed the complainant’s employment so as to identify that the complainant has jurisdiction to have his complaints heard under the three statutes.

The complainant submitted legal arguments as to why the complainant should be deemed to be employed under a contract of service. I accept that it is necessary to go behind the title of the contract, which the respondent might ascribe to the complainant’s employment to uncover its constituent elements and their proximity to the definitions of a contract of services as set out in case law and other authorities. The case law cited by the complaint’s representative on pages 2-3 of this decision supports the complainant’s contention that his was a contract of service.

I accept the compatibility of the facts of the within case with these same cases cited on page 2-3 of this decision.

In coming to my decision, I am also influenced by the Code of Practice for Determining Employment or Self Employment, Employment Status Group, Programme for Prosperity and Fairness, 2017 which states that an individual would normally be an employee if he or she:

“Is under the control of another person who directs as to how the work is to be carried out.

Supplies labour only.

Receives a fixed hourly/weekly/monthly wage.

Cannot subcontract the work. If the work can be subcontracted and paid on by the person subcontracting the work, the employer/employee relationship may simply be transferred on.

Does not supply materials for the job.

Does not provide equipment other than the small tools of the trade. The provision of tools or equipment might not have a significant bearing on coming to a conclusion that employment status may be appropriate having regard to all the circumstances of a particular case.

Is not exposed to personal financial risk in carrying out the work.

Does not assume any responsibility for investment and management in the business.

Does not have the opportunity to profit from sound management in the scheduling of engagements or in the performance of tasks arising from engagements.

Works set hours or a given number of hours per week or month.

Works for one person or one business.”

I find that the complainant’s employment matches these criteria

I accept on the basis if the written and oral evidence tendered that there was a mutuality of obligation as set out in Nethermere (St Neots ) Ltd v Gardiner (1984) LCR 612.

Based on the uncontested evidence tendered I accept the evidence of the complainant that he was an employee of the respondent.

I accept the complainant’s uncontested evidence that he worked 11 days which yielded a wage of €1980, that he received €600 in wages but did not receive the remaining €1,380 which was withheld from him. I find that the respondent should pay him the outstanding €1,380 subject to lawful deductions.

2.Ca -00013247-002.

The complainant withdrew this complaint.

3.-00013247-003

The complainant in his complaint form advised that he did not receive his paid holiday / annual leave entitlement. Based on the uncontested evidence I find that the respondent is in breach of section 19(1) (c) of the Organisation of Working Time Act,1997. He worked 11 days, 88 hours and that 8% of same amounts to €158.40. I decide that the respondent should pay him the sum of €158.40 subject to lawful deductions.

The complainant in his written submission claims payment for a public holiday in accordance with section 21 of the 1997 Act.

I award him a days’ pay which amounts to €180.

1.CA-00013247-001.

I decide that the non- payment of the salary owed to the complainant is a deduction within the meaning of the Act. I find that the respondent is in breach of section 6 of the Payment of Wages Act, 1991 and that he should pay the complainant the sum of €1380 subject to all lawful deductions.

2.CA- 00013247-002.

The complainant withdrew this complaint

3.CA—00013247-003.

I decide that the respondent is in breach of section 19(1) (c) of the Organisation of Working Time Act, 1997, and that the respondent should pay the complainant the sum of €158.40 subject to all lawful deductions.

I award him a days’ pay which amounts to €180 in respect of the public holiday which fell on the 2/4/17 subject to all lawful deductions.

In addition, I award the sum of €250 in compensation for a breach of the statute.

Contract of service v contract for services; non- payment of wages; deduction; non -payment of holiday entitlements.