ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00018131

Parties:

Complaint(s):

Date of Adjudication Hearing:  26/02/2019

Workplace Relations Commission Adjudication Officer:  Michael McEntee

Procedure:

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

Background:

1:        Preliminary Legal issues. Jurisdiction of Adjudication officer.

In opening discussions, it became immediately clear that the arrangements between the parties was that of Main Contractor and a Self Employed Sub-Contractor in the Newspaper delivery business. The Complainant had agreed with the Main Contractor that he, the Complainant, would deliver a number of Newspapers on a set delivery run each night. The Complainant would supply a Van or Vans and Drivers as required to meet a fixed delivery schedule. The Main Contractor was not involved with the Complainant’s operations, choice of drivers, vans etc. A Monthly invoice would be paid for delivery services provided.

Both parties agreed that it was a completely self-employed operation, no contracts of employment were sought or offered, and no question of normal employment related payments, sick pay or holidays was involved. The Complainant was free to substitute vans and drivers as he saw fit depending on circumstances.

I was conscious of the numerous Legal Precedents in this area that go into determining the nature of an employment relationship in a case such as this. The landmark case being Henry Denny and Sons (Ireland) v Minister for Social Welfare [1998] 1 IR 34. Issues such as the Control factor, the Entrepreneurial test, the Profit and Loss question were considered. The Complainant supplied the vans and the drivers, undertook his own insurances and is was his responsibility to either make or lose money on the contract.

The issues in dispute arose from the failure of the Complainant to provide a Van and Driver on a night. This caused the Main Contractor considerable inconvenience and difficulty in having to provide a substitute van and driver at almost immediate notice.

Accordingly, having heard the oral evidence and considered the Legal precedents, I had to come to the view that no normal employer/employee employment relationship existed, as required by the Payment of Wages Act, 1991 and as such I did not have jurisdiction to proceed.

Section 1 of the Payment of Wages Act, 1991 as quoted below refers.

Interpretation.

1

1.— (1) In this Act—

“ cash” means cash that is legal tender;

“ contract of employment” means—

( a) a contract of service or of apprenticeship, and

( b) any other contract whereby an individual agrees with another person to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract) whose status by virtue of the contract is not that of a client or customer of any profession or business undertaking carried on by the individual, and the person who is liable to pay the wages of the individual in respect of the work or service shall be deemed for the purposes of this Act to be his employer,

whether the contract is express or implied and if express, whether it is oral or in writing;

I set aside the Claim.

2:        Decision:

Section 41 of the Workplace Relations Act 2015 and Section 6 of the Payment of Wages Act, 1991 require that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.

Dated: 30^th April 2019 

Workplace Relations Commission Adjudication Officer:  Michael McEntee

Key Words: