ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00010073
Parties:
| Complainant | Respondent |
Anonymised Parties | A Dog Groomer | A Pet Shop |
Representatives |
| Peninsula Business Services Limited |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00013148-001 | 16/08/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00013148-003 | 16/08/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00013148-004 | 16/08/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00013148-005 | 16/08/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00013148-006 | 16/08/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00013148-007 | 16/08/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00013148-008 | 16/08/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00013148-009 | 16/08/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00013148-010 | 16/08/2017 |
Date of Adjudication Hearing: 17/04/2018
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and/or Section 79 of the Employment Equality Acts, 1998 - 2015, and/or Section 13 of the Industrial Relations Acts 1969 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant commenced work on the respondent’s premises in April 2014 and terminated in August 2017. There is a dispute about the nature of the employment relationship, or if any existed and this is addressed as a preliminary point. Whether any of the complaints fall within jurisdiction turns on the answer to this question. |
Summary of Respondent’s Case:
Preliminary Point The respondent says that he entered into a verbal agreement with the complainant that he would provide facilities for him to conduct dog grooming within his retail premises. This was in consideration of the attraction of that service in increasing footfall in the business in general. At no stage did he enter into an employment relationship with the complainant who was primarily responsible for booking in customers and charging them for services rendered. The complainant was facilitated in respect of credit card payments as he did not have a credit card machine, but all receipts were passed back to the complainant, less occasional deductions for products used. A note was placed on the credit card receipt so that it could be allocated to the complainant and a cash amount would be passed back to him without deduction. Other payments were made direct to the complainant by his clients. He could not say what proportions of income were by cash or credit card. The respondent did not control the complainant’s working hours, start or finishing times or days off although he did supply the equipment used in the grooming activity. At no stage in the three-year relationship did the complainant ever raise his entitlement to the employment rights he seeks in the current case. The shop manager gave evidence in support of the practise outlined; that the complainant operated an independent enterprise and would be refunded based on the card payment received. As far as he was concerned the complainant was at no stage an employee. A further submission was received from the respondent in this regard. Three receipts were submitted; the first, a till receipt showing a total sale of shop products to the value of €38.50, but aa total charge of €78.50. A sum of €40.00 is shown as ‘Change Visa Debit’ which the respondent says was the amount subsequently forwarded to the complainant. A second receipt shows the same. A third receipt shows evidence of purchases made by the complainant from the respondent shop and, it says for the purposes of his, the complainant’s business. The respondent produced detailed employment records in respect of all other staff to show that employment records, taxation etc. were all fully complied with. There would be no advantage to the respondent to exclude the complainant from this unless the original oral agreement between them was what the respondent was claiming. The respondent made submissions on the legal tests to be applied to determining whether an employment relationship can be considered a ‘contract of service’, that is one which enjoys a ‘normal’ employee status or whether it is a ‘contract for services’, traditionally describes as a ‘contractor’, who does not enjoy and of the security or protections in the suite of employment rights legislation. In respect of the complaint under the Employment Equality Acts the respondent says that it employs a mixture of nationalities and does not discriminate on the basis of their nationality or any basis. |
Summary of Complainant’s Case:
The complainant disputes these arguments in every detail. In the first place, he was paid a fixed sum every week for the number of hours he worked. This did not vary and was approximately €480.00 per week, which equated to €10.00 per hour. This sum was paid to him net of deductions. He was never asked to make a contribution for grooming products which came from the shop. The sum was paid as a net amount. He has never seen any invoice or other document showing a charge of the materials allegedly used. The complainant says he raised his employment status with the respondent on numerous occasions, probably monthly, seeking to regularise it and give him some security. However, the respondent would not engage with him and declined to give him a straight answer. The complainant did not pay any rent to the respondent. In response to the supplementary material submitted by the respondent he says he expected to receive all the credit cards transactions by costumers from April 2014 until August 2017. He says the receipts submitted by the Respondent ‘are irrelevant’. The first receipt is from Tuesday March 7th, but he says Tuesday is his only day off and that this was by agreement with the respondent. The second receipt has as date 10/23/20 which is a date that he says he cannot ‘relate with’. In respect of the third piece of evidence he says the till receipt for the products purchased in respect of the grooming business is also irrelevant because the date is not visible on it and also the products are only blades and shampoos, not grooming equipment. At the hearing, he requested a receipt for all the grooming equipment that was used in the salon e.g. grooming table, grooming bath, grooming shavers, blaster, cages, dryers, boiler. He said he would need to see the receipt for all this grooming equipment respondent allegedly ordered for the complainant, and to see the respondent' bank statement showing how he paid for the equipment and how the cash from the complainant entered into his account, as the respondent claimed at the hearing. In respect of the other complaints, the complainant says that he left the employment because of the stressful environment. Only very generalised evidence was adduced in relation to this. His complaint under the Equality Acts related to some general comments about his country of origin. The complaint under the Industrial Relations Act was not pursued. |
Findings and Conclusions:
On the basis of the average charge per customer the weekly income generated would be something in the region of €1,000 per week. The complainant estimated that the average transaction was about €30.00 and that there could be five or six of these per day. There is not so much a conflict in the evidence but a very serious mismatch arising from undisputed facts. On the one hand, the complainant was, he says, paid a fixed amount every week based on €10.00 per hour for a forty-eight-hour week; €480. Based on the transaction figures above this should have earned the complainant between €900 and €1080. This is a substantial discrepancy. The three pieces of evidential material submitted by the respondent subsequent to the hearing, when he was on full notice of the issues that were in play as they had been fully rehearsed at the hearing, offered a very poor and unconvincing response to this, for a number of reasons. In the first place, even three swallows do not make a summer. Further, in respect of one of pieces of evidence submitted the complainant says it occurred on a day when he is not at work and none of the material establishes a connection to the complainant. There is no proof that he was to be the beneficiary of the deductions shown, or that he was the purchaser of the materials on the third receipt. There are a number of tests as to whether a person is engaged on a contract of employment (‘of service’) or is what is generally referred to as a contractor’ (engaged on a contract for services’). Some are decisive in either direction, some are more indicative. In the leading UK case of Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173 a number of tests were formulated. 1) Does the person performing the services supply his own equipment 2) Can he hire his own helpers? 3) Does he carry any financial risks and to what extent? 4) What opportunity does he have to make a profit? 5) To what extent does he carry the responsibility for investment/management. The Revenue Commissioners of Ireland have outlined similar tests in their Code of Practice for Determining Employment or Self Employment. These relate to whether the employee; 1) Is under the control of another person who directs as to how, when and here the work is to be carried out, 2) Supplies labour only, 3) Received a fixed wage 4) Cannot subcontract the work 5) Does not supply materials for the job 6) Does not provide equipment other than small tools of the trade 7) Is not exposed to personal financial risk in carrying out the work 8) Works set hours or a given number of hours It will be obvious from these indicators that the complainant meets the criteria required for a contract of service. While the degree varies in each case these questions can be answered in the affirmative in respect of the complainant. He was paid a fixed hourly fee of approximately €10 per hour. Nothing he could do would alter that rate of earning. The respondent supplied all the necessary materials, The complainant in this case presented regularly at the place of work, at a starting and finishing time determined by the respondent, and his time off was agreed by the respondent (Tuesdays). Therefore, I conclude that the complainant was clearly engaged on a contract of service. His specific complaints were as follows; The unfair dismissal complaint arises because the complainant says that he left the employment because of the stressful environment. Only very generalised evidence was adduced in relation to this and insufficient to meet the established criteria in cases such as Berber v Dunnes Stores on such matters. His complaints under the Equality Acts and the Industrial Relations Acts were also very generalised and in respect of the former he did not make out a prima facie case. Under the Organisation of Working Time Act the complaints are as follows; CA-00013148-001; Compensation for Sunday Working CA-00013148-003 Payment for breaks CA-00013148-004 Exceeding the maximum number of working hours. CA-00013148-005 Annual leave CA-00013148-006 Public Holidays CA-00013148-007 is a complaint under the Terms of Employment (Information) Act for not having received the statutory statement of his terms of employment. CA-00013148-008 is the complaint under the Unfair Dismissal Act CA-00013148-009 arises under the Industrial Relations Act, and CA-00013148-010 is the complaint under the Employment Equality Acts. While the preliminary point is a critical issue, the complaints above were fully heard in the course of the hearing and having decided that preliminary point in the complainant‘s favour I proceed to a decision on the other complaints. Essentially the respondent’s defence was on the employment status issue. I uphold complaints with the suffixes 001, 003, 004, 005, 006 and 007. Given my finding on the employment status, I accept the evidence of the complainant in respect of these complaints. Regarding his complaint about his working hours exceeding the permitted forty eight, his evidence was that his hours were forty eight and there was insufficient evidence to ground this complaint. I make my awards below. I may only make an award in respect of a breach within the cognisable period of six months, or in the case of annual leave, within six months of the ending of the annual leave year. The complaint was submitted on August 16th 2017. I calculate my awards on the basis of the complainant’s earnings at €480 per week and, where relevant I calculate the six month period from the date of claim to from February 16th. I do not uphold the others for the reasons set out above. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I uphold complaint CA-00013148-001; compensation for Sunday Working, and award the complainant €520 being a 25% premium on his daily rate of €80.00 for twenty six Sundays I uphold complaint CA-00013148-003 in respect of payment for breaks and award the complainant €750.00 I uphold complaint CA-00013148-005 in respect of annual leave and award him twenty days’ pay in the amount of €1,600.00 I uphold complaint CA-00013148-006 Public Holidays and award him €400 in respect of the five public holidays falling within the cognisable period. I uphold complaint CA-00013148-007 under the Terms of Employment (Information) and award the complainant two weeks wages in the amount €960. I do not uphold complaints CA-00013148-004, CA-00013148-008, CA-00013148-009 and CA-00013148-010 for the reasons set out above and they are dismissed. |