Complainant

Respondent

Anonymised Parties

Plasterer

Plastering and construction company

Representatives

Operative Plasterers & Allied Trades Society of Ireland

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-00013245-001

23/08/2017

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

CA-00013245-002

23/08/2017

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

CA-00013245-003

23/08/2017

The complainant was advised by a fellow plasterer of the availability of work with the respondent. He commenced employment with the respondent as a plasterer on 24/2/17. The respondent set his weekly hours at 39 and his   daily rate at €180.

His complaint form submitted to the WRC states that the respondent offered him work on a self-employed basis.

He received no pay slips. He worked 29 days for which he was due €5,220. He received a part payment of €1,560 from the respondent. This was handed to him by the fellow plaster designated by the respondent to distribute the wages to the team of plasterers. The remaining salary of €3660 was withheld from him.

He was dismissed on the 7/4/17 without any procedure being invoked due to what the respondent described as the quality of the workmanship.

He contends that he is an employee.

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

1.CA -00013245-001. Payment of Wages Act, 1991 complaint.

Preliminary matter.

The complainant’s representative raised the preliminary matter of an employee v self-employed by way of 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 maintained that complainant was not an employee but 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’s representative stated that the practice of using the term self-employed was a ruse sometimes used in the construction industry to enable a respondent to evade his obligations to employees and to the state. It was imperative to look behind the classification to examine the characteristics of his employment.

The complainant has no written contract of employment. He was paid by a colleague plasterer, designated by the respondent, to divide the pot of money between the members of the respondent’s plastering team – a common practice in the plastering industry.

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 and asked him if he was happy with that rate, set out the working hours to be 7.30-4.30, with a 30-minute break at 10am and at 1pm. The respondent advised him that he had work for a year for him and advised him also of the different sites. 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.   He was at all times under the direction of the site manager or the respondent director as to which site he should work on and in what manner. The respondent re assigned him to another site in north Dublin, also under the control of the respondent to work on another project.

The difference between the within case and Henry Denny and Sons (Ireland) Ltd v Minister for Social Welfare, 1997 IESC is that the complainants supplied their own clothing as is the case in the plastering industry for many years.

The complainant’s representative characterises the statements contained in the above case to the effect that the complainant was responsible for her own tax affairs as being of minimal value in identifying the contractual status of the employee.

The complainant’s representative’s representative referred also to the case of Nethermere (St Neots) Ltd v Gardiner (1984) LCR 612 in which the test of” mutuality of obligation” was identified as a prerequisite for a contact of service to exist.

A contract for services was not in existence in this employment.

Alleged breach of Payment of Wages Act,1991.

The complainant’s salary was withheld from him on the 7/4/17 as the respondent alleged that the finish on the wall was unacceptable. The complainant is a qualified plasterer and the respondent is not. There were issues between the respondent and the complainant as to the amount of drying off time required in wet weather- the complainant advising that more time was required.

The complainant’s evidence is that he worked a total of 29 days for the respondent from the 24/2/17-7/4/17. The agreed rate of pay was €180 a day. Hence the total due for the period was €5,220. The respondent paid the complainant the sum of €1560. The amount of unpaid wages stands at €3,660.

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. 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; these monies were required to cover the costs of the complainant’s wages.

The complainant’s representative advises that it is not uncommon for a contractor or sub-contractor to designate one plasterer as the paymaster for the pay period and to disperse the monies given to him to the other plasterers but that does not make the recipient a self-employed contractor.

2.CA 00013245-002.

The complainant did not receive a statement in writing of his terms of employment as required under the 1994 Act. He is seeking compensation for this breach.

3. CA-00013245-003.

The complainant advises that he was not paid for holiday leave for the period of his employment 24/2/17-7/4/17 and that 8% of the hours worked by him result in a payment of €675 in respect of non-payment.

The complainant contends in his written submission that in accordance with section 21 of The Organisation of Working Time Act, 1997 he is owed payment for 17th March and Easter Monday, 2nd April 2017.

1.CA-00013245-001.

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

CA -00013245-002.

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

3.-00013245-003

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

1.CA-00013245-001.

Contract of Service vs Contract for services.

It is necessary to identify which contract governed the complainant’s employment so as to identify that I have jurisdiction to hear these complaints.

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 service as set out in case law and other authorities.

The case law advanced by the complainant’s representative and cited on pages 2-3 of this decision supports the complainant’s contention that his contract was a contract of service.

I accept the compatibility of the facts of the within case with the cases cited on pages 2-3 of this decision. I am also guided 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 of the uncontested 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 I accept the evidence of the complainant that he was an employee of the respondent.

The complainant’s documented evidence is that he worked 29 days which yielded him €5,220, that he received €1,560 in wages but that the remaining €3,660 was withheld from him. I find that the respondent should pay him the outstanding amount of €3,660.

2.CA-00013245-002.

Section 3 (1) of the Terms of Employment (Information) Act, 1994 sets out the particulars which an employer is obliged to provide to an employee not later than 2 months after the commencement of his employment.

Section 3 (1)(2) states

“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. “

The respondent failed to comply with this provision. I find the complaint to be well founded. I award €450 which amounts to a half a week’s salary as compensation for the breach.

3. CA-00013245-003.

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. Based on the dates provided in his written submission and at the hearing, he worked 29 days, (232 hours) and that 8% of same amounts to €417.60. I decide that the respondent pay him the sum of €417.60 subject to lawful deductions.

The complainant in his written submission claims payment for 2 public holidays in accordance with section 21 of the 1997 Act.

I award him 2 days’ pay which amounts to €360.

1.CA-00013245-001.

I decide that the withholding 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 €3,660 subject to all lawful deductions.

2.CA- 00013245-002.

I uphold this complaint. I award the complainant €450 in compensation for this breach of the statute.

3.CA—00013245-003.

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 €417.60 subject to all lawful deductions.

I decided that the respondent is in breach of section 21 (1) of the 1997 Act and I award the complainant two days’ pay amounting to €360 subject to all lawful deductions.

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

Contract of service v contract for services; payment of wages; deduction: payment for holidays; terms of employment.