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-00019543-001

29/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00019543-002

28/05/2018

The Complainant lodged a complaint with the Workplace Relations Commission on 28 May 2018. The named Respondent in this case is a Recruitment Agency and the Complainant is a Project Manager. The Complainant was paid a gross weekly salary of €1,825.63 and worked an average of 60 hours per week.

The Respondent provided background to the case as follows:

The Respondent operates a recruitment company placing permanent temporary and contract staff in Ireland and abroad. The Complainant works in the construction industry and was put forward for interview in company B by the Respondent. On being offered a position with company B the complainant was offered options regarding his employment status. He was told he could become an agency worker paying PAYE with the named respondent or look at alternatives using a company setup which could be discussed with another entity, company A.

The Complainant took advice from company A about the best way to operate. Company A advised him how to set up as a contractor, advised on the various payment options available as well as the differences between setting up a PAYE Umbrella Company and a Director Umbrella Company. Company A also provided sample payslips to the Complainant to show the difference in take-home pay.

The Respondent submits that the Complainant chose to set up as a PAYE member of an umbrella company, company C. (A service contract between the Complainant and Company C was presented on the day of the hearing). The Respondent entered into a commercial arrangement with company C.

An issue arose in or around February 2018 where the Complainant queried his set up under the PAYE Umbrella Company and why he was paying Employer's PRSI. The Respondent was not part of the Complainant's decision to set up the company and directed him back to company A.

Company A replied to the Complainant by email dated 28th of February 2018, setting out the difference between the company he had chosen to set up and a Director Umbrella Company under which option he would be classed as self-employed and playing Class A contributions.

The matter did not resolve and an employee of the Respondent wrote by email dated 8th of May 2018 setting out the options available to the complainant. He stated that he would like to come to an arrangement that everyone would be happy with but as the rates had already been agreed with company B his options were limited. He listed a number of options that were available to the Complainant.

There was no response from the Complainant and after the Complainant was informed that company B did not have a permanent position, the Respondent was informed that the Complainant had lodged a claim to the WRC.

The Respondent submits that the Complainant was given the option of being an Agency worker paying PAYE but chose to be set up as a contractor and took relevant and clear advice from company A, who set out in detail the differences between the various options. The Complainant chose to be set up as an Umbrella Company and it was that company that entered into a commercial arrangement with the Respondent. The benefit for the Complainant was that he received an increased hourly rate inclusive of PRSI and holiday pay.

It is submitted by the Respondent that the Complainant cannot now deny that he set himself up in that way and seek to get repayment of PRSI that was lawfully deducted by the Respondent. The Respondent submits that the PRSI that was deducted was correctly deducted in accordance with the manner in which the Complainant set himself up and is therefore not an unlawful deduction.   In the same manner the Respondent has no responsibility for payment of Holiday Pay or Overtime.

In oral evidence at the hearing the Managing Director of Company A stated that it was the Complainant, having had several options explained to him who chose the PAYE Umbrella route for his work with company B.

In cross examination the witness denied that company A is a sister company of the Respondent.

In evidence the Managing Director of the Respondent stated that there are no links between his company and company A.

The Complainant submitted that an illegal deduction was made from his wages from 31 October 2017 to the date of hearing to the amount of €5,022 and he was paid less than the amount due to him from 31 October 2017 to date of hearing, to the amount of €22,776.64. The Complainant submits that in total he is owed €27,788.64

In oral evidence at the hearing the Complainant stated that having been interviewed by the Respondent he was offered a role as a Project Manager working with company B, which he accepted, requiring him to leave a permanent role elsewhere.

From his understanding of conversations he had with the Respondent he was going to be working on contract for them. He was told by the Respondent to set up an account and he would be paid through company A.

He was sent a Confirmation of Assignment which had the Terms and conditions on the back. The Complainant did not read the document.

When the first payment from company A came through he was saw that Employer's PRSI had been taken from his pay. He queried this in an email dated 10th November 2017 but got no response. He again raised the subject in an email dated 23 February 2018, asking why he had to pay Employer's PRSI when he was not a sub-contractor. There was some further interaction between the Complainant and the Respondent after this but the matter was not resolved.

The Complainant believes he was employed by the Respondent and is owed the PRSI contributions, overtime pay and holiday pay.   The claim for Travel Time pay was withdrawn at the hearing.

The Complainant confirmed at the hearing that he had handed in his notice and was about to finish working in company B.

In conclusion the Complainant stated that he had been "railroaded into taking bogus employment". He was adamant that he was an employee of the Respondent.

The Complainant stated that he did not read an email to him, dated 24th October 2017 from Company A which outlined the details of the manner in which the PAYE Umbrella Company would work. This was an important email and he should certainly have taken cognisance of it, this email was clear regarding his employment status.

The Complainant stated at the hearing that he did not read the Terms and Conditions attached to a Service Contract, which he signed, between him and company C. This Contract was an important document in the scheme of things and the Complainant should have read the terms and conditions.

The Complainant's Payslip also indicates company C is whom he has an employment relationship with.

Having reviewed the evidence put forward at the hearing I find that the named Respondent is not the correct Respondent.   It was the Complainant's decision to utilise an Umbrella Company and when he went down that road he ended the potential agency relationship that might have been put in place with the Respondent.

I find the named Respondent is not the employer in this case.

As I have determined that the Respondent was not the employer and both claims are dismissed.