MWD182

This an appeal from two decisions of a Rights Commissioner/Adjudication Officer (r-151703-mw-14/SR and r-156000-mw-15/SR, both dated 23 October 2017) under the National Minimum Wage Act 2000. The appeal was heard in conjunction with another appeal which was brought under the Payment of Wages Act 1991. The parties to the appeal are referred to in this determination as they were at first instance i.e. Enda Murphy is referred to as the Complainant and Frank Regan T/A DNG Frank Regan as the Respondent. The Complainant referred all three appeals to this Court, the Rights Commissioner having found that he had no jurisdiction to hear the complaints.

Employment Status

A preliminary issue in relation to the Complainant’s employment status during the period relevant to the within claim/appeal falls to be determined by the Court. The Respondent submits that at no time did he enter into a contract of service with the Complainant and, therefore, the Complainant does not havelocus standito pursue the within appeal. It follows that the burden of rebutting that submission falls on the Complainant before the Court can assume jurisdiction to consider his substantive claims.

It appears to be common case that the Complainant undertook an Estate Agency Practice Course in the academic year 2012-13 during which time the Respondent acted as an informal mentor to the Complainant. The Complainant submits that he and the Respondent met sometime in September 2013 at which point the Complainant was about to commence a Level 8 degree course in the Institute of Technology in Limerick. This was to complement the Complainant’s existing Level 6 qualification (Higher Certificate in Science in Property Valuation and Management) which qualification, he submits, entitled him to engage in all aspects of estate agency practice. The Complainant’s understanding of what transpired at that meeting in September 2013 is that the Respondent made him an offer of employment whereby the Complainant would operate as a named Estate Agent under the umbrella of the Respondent’s Property Services Regulatory Authority licence, on a part-time basis while at the same time pursuing his further studies. The Complainant says he accepted this offer in good faith and believed that he would be paid €18.00 to €20.00 per hour for whatever work he did. On the basis of this presumed offer of employment, the Complainant says that he undertook extensive work such as showing properties to potential purchasers etc during the period 31 October 2013 and 14 June 2014. The Complainant received no payment from the Respondent during this period. Neither did he receive any reimbursement of out-of-pocket expenses such as travel costs. The Complainant submits that he verbally requested payment from the Respondent on a number of occasions but that he never made any such request in writing.

It is submitted on behalf of the Respondent, that the arrangement between the parties was at all times one of unpaid work experience. The Respondent denies that he ever offered to pay the Complainant. He characterises his arrangement with the Complainant as ‘a gentlemen’s one with a clear understanding of mutual expectations’. He submits it was a relationship of ‘give and take’ from which the Complainant benefitted considerably from the Respondent’s considerable experience in the estate agency business in return for the work he did in the office and with clients.

The Complainant was unable to confirm to the Court whether or not he (or the solicitor who was acting for at the time the within complaints were referred to the Rights Commissioner) had requested a statement or statements pursuant to section 23 of the National Minimum Wage Act 2000, prior to initiating proceedings under that Act.

Discussion and Determination

The Complainant, in the Court’s view, has not advanced any evidence before it to support his submission that a contract of service was formalised between him and the Respondent in September 2013 or at any time thereafter. A fundamental term of any employment contract is the rate of remuneration agreed between the parties. The Complainant’s evidence was that the Respondent proposed to pay him ‘between €18.00 and €20.00 per hour’. Taking that evidence at its height, it suggests that there was never any final agreement as to the rate of pay that would be paid to the Complainant. The Complainant also told the Court that he never furnished the Respondent with a P45 or with bank details to facilitate payment to him nor was he asked by the Respondent to furnish such details.

In all the circumstances, the Court finds that the Complainant has not adduced evidence from which the Court can, on the balance of probabilities, conclude that a contract of service was concluded between the parties. It follows, therefore, that the appeal fails and the decision of the Rights Commissioner/Adjudication Officer is affirmed.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
CR______________________
5 February, 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.