ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017855
Parties:
| Complainant | Respondent |
Anonymised Parties | Carpenter | Construction Sub Contractor |
Complaint:
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-00023044-002 | 05/11/2018 |
Date of Adjudication Hearing: 11/12/2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant alleges that he was an employee of the Respondent. He worked from 6th October 2018 to 20th October 2018. He has claimed that he is owed €2,726 in wages. The Respondent stated that this was not an employer /employee relationship. The Complainant was self-employed. |
Summary of Complainant’s Case:
Employer/Employee relationship |
The Complainant’s Representative stated that he was an employee. He agreed a daily rate of pay of €150 net per day. He understood that the Respondent was paying the tax and PRSI and agreed to work 7.00 to 4.00pm. He regularly had to work to 7.00pm and was to be paid extra for that. The Foreman on the site decided what work was to be done. He was paid a daily rate not a piece rate. He had no control over what he did. He was not free to get somebody else to step in for him. The standard of work was decided by the Foreman. This was a classic employer employee relationship.
Claim
He stated that he agreed to work for €150 per day X 5 days = €750. That was for 7.00 to 4.00pm, however he had to work 7.00 to 7.00pm. He also worked on Saturday.
He has claimed that he is owed €2,762 also €250 for working a Sunday which was not claimed until the day of the hearing.
Summary of Respondent’s Case:
The Respondent stated that he was self-employed. He agreed to pay him €150 per day. He was responsible for his own statutory deductions. He was taken on as a self-employed contractor. He accepts that he is owed €1,905. He is unable to pay this as the contractor that he was working for has not paid him. He has no means to pay it. |
Findings and Conclusions:
Employer/Employee Relationship I will apply the tests that are used to determine the employer/employee relationship. 1)Contract of employment There was no contract of employment to rely upon. There was a direct conflict of evidence concerning the nature of this relationship. 2)Control I find that the Complainant was not acting as an independent operator. The site foreman decided the work. This would suggest that this was an employer/employee relationship. 3)In work on own account I find that he was not free to provide a replacement for himself. He was not able to benefit from this arrangement as he was paid a fixed rate. This would suggest an employer/employee relationship. 4) Method of payment I find that he was paid a daily rate irrespective of the amount of work done. This suggests an employer/employee relationship. 5) Mutuality of Obligation I find that the Respondent agreed to provide work for him at a daily rate and the Complainant was obliged to carry out that work himself. I find that there was a mutuality of obligation. This clearly suggests that this was an employer/employee relationship. Having considered the above tests I have decided that this was an employer / employee relationship. Claim I note the conflict of evidence on the amounts owing. On the balance of probability, I find the Complainant’s evidence more compelling, therefore I find that he is owed €2,750. I find that the claim for €250 in respect of Sunday work was not properly before this hearing and was only claimed at the hearing. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have decided that the Respondent has breached Sec 5 of this Act.
I have decided that the Respondent should pay the Complainant €2,750 within six weeks of the date below.
Dated: January 21st 2019
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Wages owing |