ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00015059
Parties:
| Complainant | Respondent |
Anonymised Parties | A Plasterer | A Construction Company |
Representatives |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00019347-001 | ||
CA-00019347-002 | ||
CA-00019347-003 | ||
CA-00019451-001 | ||
CA-00019451-002 | ||
CA-00019451-003 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 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:
Complaints The complainant claims that he was an employee of the respondent and that he was not paid appropriately for the work that he did, that he did not receive his terms and conditions of employment and that he did not receive the benefits of Sector employment Order (SEO) SI 455 of 2017. |
Summary of Complainant’s Case:
The complainant claims that he was an employee and not paid appropriately for the work that he did. Preliminary Issue: By way of the preliminary issue regarding whether the complainant was an employee, the complainant referred to case law and the various tests surrounding the employment relationship. Reference was also made to the Code of Practice from Revenue. Examples of the application of the various tests included: Mutuality of Obligation – The complainant was dependent on the respondent to provide work for him Business on his own Account. The respondent decided on the piece work rate that applied and a predetermined wage for the complainant. Control Test – the complainant was under the direct control of the respondent’s agent on site whereby he could not profit from his activities. Examples cited included that he could not just come on the premises whenever he wanted to as there had to be a foreman on site. He arrived at a set time of 7:30 a.m and finished normally around 4:30 pm. He could not establish governance or management structures which would allow him to profit. Insurance -the complainant did not have employer’s insurance in respect of activity or activities of workers and relied upon the respondent’s insurance. The complainant did not have a health and safety statement nor was it a condition that he supply same to the respondent. The complainant does not own property and utilised mostly the respondent’s equipment. The complainant did not secure anybody else to replace him to complete the work. Case law cited included Henry Denny & Son v Minister for Social Welfare [1998] 1 IR 34, and O’Coindhealbhain v Mooney [1990]1IR 42. Evidence of Witness A Witness A gave evidence that he thought that he was an employee of the respondent as detailed by the induction sheet where he signed that the respondent was the employer. Substantive Issue: With regard to the claim under payment of wages, it was detailed in the claim form that there was an outstanding balance of €5,500 owed to the complainant. On the day of the hearing, the complainant detailed that this amount was €6,775 and that the difference included a different rate per square metre which had been agreed between the respondent and the complainant |
Summary of Respondent’s Case:
The respondent denies that the complainant was an employee and claims that at all times he was a contractor. Preliminary Issue: By way of the preliminary issue regarding whether the complainant was an employee, the respondent referred to case law and the various tests surrounding the employment relationships. Mutuality of obligation – the complainant could accept or reject work if he wished. Payment – Invoices were submitted for works carried out. Business on his own account – the complainant could and did engage others to do work on his behalf including 3 workers. Workers engaged by the complainant were not vetted by the respondent as the complainant had responsibility for them. The complainant provided some of his own equipment and also still had in his possession equipment belonging to the respondent. The complainant could arrange his own working hours. Substantive: In response to the substantive issue, the respondent accepted that the complainant was owed monies in relation to the contractor arrangement which existed between the parties but disputed that it was the amount which the complainant was claiming for. |
Findings and Conclusions:
Preliminary Issue: In order to determine whether I have jurisdiction to hear this complaint, it is necessary in the first instance to determine the nature of the relationship between the parties and decide whether the complainant was engaged under a “contract of service” or “contract for service”. The case law has been developed over the years and it has been accepted in the case of McAuliffe v Minister of Social Welfare [1994] ELR 239 that it is not possible to devise any hard and fast rule as to what constitutes a contract of service. It is necessary for me to look at the totality, therefore, of the relationship between the parties and consider each case on its own merits and to consider the evidence as presented under a series of tests as set out in varying court cases that have dealt with this issue. The Code of Practice for Determining Employment or Self-Employment Status of Individuals developed by the Employment Status Group further assists to form an understanding of this complex matter. It states “An important consideration in this context, will be whether the person performing the work does so ‘as a person in business on their own account‘. Is the person a free agent with an economic independence of the person engaging the service? This economic test is paramount”. The Supreme Court of Henry Denny & Sons (Ireland) Ltd t/a Kerry Foods -v Minister for Social Welfare [1998] 1 IR 34 quoted by both parties made clear that in determining the status of an individual both the contractual terms and the surrounding practical circumstances of the relationship should be considered. I have considered the evidence adduced taking into consideration all the factors relating to the working relationship between the Complainant and the Respondent. These factors are set out in summary hereunder. It should be noted that some are supportive of the view that the complainant was engaged as an independent contractor, others support the view that the complainant was an employee and others are inconclusive. In Business of his own Account In the Barry High Court case Mr Justice Edwards considered that the appropriate test as to whether a person is engaged in business on his or her own account should consider, among other matters the following factors: Whether the person provides the necessary premises, or equipment or some other form of investment. In the instant case the complainant did not provide premises, or any investment and provided some but not all equipment. whether the profit which he or she derives from the business is dependent on the efficiency with which it is conducted by him or her. While there appeared to be a piece rate relationship, I note that he complainant had to work on the premises at set times and could not have conducted the business differently. Integration There does not appear to have been anything hugely different that might set aside the complainant from other employees on the site and I note the complainant did not have his own insurance but relied on the insurance of the respondent. In O'Coindealbhain (Inspector of Taxes V Mooney) [1990] IR 422 the critical question was whether the person was performing the relevant services as a person in business in his/her own account. There was no credible evidence presented in the instant case, to suggest that the complainant was on her own account. Thus, while the above would give an inference of an employee-type relationship, they are not sufficient on their own and consideration must be given to other matters including: Mutuality of obligation: The case of Minister for Agriculture -v- Barry [2009] 1 IR 215 has placed strong emphasis on the requirement of mutuality of obligation to be shown in order for an employment relationship to exist. Indeed the respondent outlines that it is of central relevance to this case. The main judgement of the High Court (Edwards J) outlined that the “requirement of mutuality of obligation is the requirement that there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer”. I find that the work offered and accepted appeared to resemble an employee/employer type relationship. Relevant Contracts/Intention of the Parties: There was no contract in place either of a contractor type agreement or an employment contract Therefore, we are left with 'intent' of the parties. Witness A gave evidence that he thought that he was an employee of the respondent as detailed by the induction sheet where it refers to the respondent as the employer. I find that the intention of the relationship was that of an employee. Control: The degree of control exercised by a person may provide guidance in deciding whether a contract is one "for service" or "of service" although it may not always be a satisfactory test to apply clear from an older case of Cassidy V Minister for Health (1951 2 KB 343). The respondent detailed that the complainant operated independently and therefore they were not able to exercise any control. I note that when the complainant did not show up to work in April 2018, the respondent responded with a text message that the complainant would not get paid. I note that this text message suggests a “control” type of relationship between the parties suggesting that the complainant was not free to come and go as he wished and had to come on site at the times dictated by the respondent. I find on this test that the complainant was an employee. Taxation: It was accepted that the complainant was paid on submission of an invoice and looked after his own tax affairs. While this may indicate independent contractor status, it is not decisive and as has been well documented in the Denny case where the demonstrator paid her own tax, the Supreme Court held she was still an employee. While the demonstrator in the Denny case did not appear to have presented VAT invoices, Revenue do not accept payment of VAT or not as an automatic declaration of self-employment. This test is, therefore, inconclusive. Substitution: The respondent detailed that there were at least 3 people that the complainant put forward as substitution for his work. The complainant denied any knowledge of two of these. The third person gave evidence that he believed he was engaged to help out as an employee of the respondent and thought it unusual that he was paid for by the complainant. This would suggest that the complainant did not put forward individuals as substitution to perform the work. Therefore, looking at the working relationship as a whole, and taking into consideration the legal principles set out above, I determine that the complainant was working as an employee for the respondent. I, therefore have jurisdiction to hear the claim. Substantive Issue: Section 5 (1) details that “An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it. (2) An employer shall not make a deduction from the wages of an employee in respect of— (a) any act or omission of the employee, or (b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment, unless— (i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and (ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and (iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with— (I) in case the term referred to in subparagraph (i) is in writing, a copy thereof, (II) in any other case, notice in writing of the existence and effect of the term, and (iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and (v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and (vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and (vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.” It was accepted that the complainant was owed monies. There were detailed submissions made by both parties regarding what was the outstanding amount owed. I note that the complainant had difficulties at times articulating how much he was owed. Having reviewed all the evidence and taking all the circumstances into consideration I prefer the evidence of the respondent regarding the amount of monies owed. I find that the claim is well founded and I order the respondent to pay to the complainant €3,135. |
Summary of Complainant’s Case:
The complainant detailed that he was an employee as referenced above and that he never received his terms and conditions of employment. |
Summary of Respondent’s Case:
The respondent denied that the complainant was an employee for all the reasons referenced above and detailed that he was not entitled to terms and conditions of employment as provided for under the Act. |
Findings and Conclusions:
I have found in Section 3 (1) of the Terms of Employment (Information) Act, 1994 states that an “employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the … terms of the employee's employment.”
I find that the claim is well founded and I order the respondent to pay to the complainant €1,000. |
Summary of Complainant’s Case:
Preliminary Issue An option was not available to the complainant to submit a claim on the WRC claim form under Sectoral Employment Order (SEO) (Construction Sector) S.I. 455/2017, which the complainant’s representative put the WRC on notice of and detailed out their complaint in the summary of their complaint. Substantive Issue: It was detailed that on 19th October 2017 S.I. 455 of 2017 was passed. This is a Sectoral Employment Order in the Construction Sector. The Complainant is covered by the provisions of this Sectoral Employment Order and did not receive the benefits of this SEO including pension and death in service. |
Summary of Respondent’s Case:
The Respondent stated that the Complainant was a self-employed contractor and this SEO does not apply to the complainant. |
Findings and Conclusions:
Preliminary Issue: In relation to the preliminary matter I find that the WRC Complaint Form is not prescribed by statue. I note that the WRC Complaint Form, at the time of the referral, had no option available to refer the claim under the appropriate legislation. Moreover, I note that the Complainant has addressed the matter in the “Complaint Specific Details or Statement” where he specifically referred to section 23 of the Industrial Relations (Amendment) Act 2015 and S.I. 455 of 2017 Sectoral Employment Order (Construction Sector). It is noted that in the case of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan[2009] IEHC 370 that McGovern J held that it is only permissible to amend the form where ‘the general nature of the complaint remains the same.’ I am satisfied that the respondent was on notice of the details of this complainant and that the Respondent’s defence of the claim has not been prejudiced as it was fully aware of the general nature of the claim and the legislative basis underpinning the proceedings well in advance of the oral hearing. In the circumstances, I am satisfied that the present complaint is admissible. The enactment of the Industrial Relations (Amendment) Act 2015 provided a mechanism for trade unions to request the Labour Court to examine pay and terms and conditions of employment in certain sectors and to make a recommendation on these matters to the Minister at the Department of Business, Enterprise and Innovation. The preamble to the Act sets out its objective: “An Act to make further and better provision for promoting harmonious relations between workers and employers and, in particular, to make provision for a system of registered employment agreements and sectoral employment orders…” A Sectoral Employment Order (SEO) providing for agreed terms in the construction sector, was signed into law by the Minister on October 19th 2017 (S.I. 455 of 2017). Section 16(2)(e) of the Industrial Relations (Amendment) Act provides that the Labour Court, in its recommendation to the Minister on rates of pay and conditions of employment in a particular sector, must have regard to the fact that, “…the sectoral employment order shall be binding on all workers and employers in the economic sector concerned.” Section 19 provides for the adaptation of contracts of service consequential upon sectoral employment orders. 19. (1) A sectoral employment order shall apply, for the purposes of this section, to every worker of the class, type or group in the economic sector to which it is expressed to apply, and his or her employer, notwithstanding that such worker or employer was not a party to a request under section 14, or would not, apart from this subsection, be bound by the order.” I find that the Respondent is an undertaking which falls within the definition of the SEO. Having examined these matters I conclude that that the Respondent contravened the SEO by failing to provide the relevant benefits to which the Complainant was entitled. Where there is a contravention of a SEO, section 23 of the Industrial Relations (Amendment) Act, 2015 permits redress that is “just and equitable in all the circumstances”. I find that the claim is well founded and I order the respondent to pay to the complainant €1,200. |
Summary of Complainant’s Case:
This complaint was withdrawn. |
Summary of Complainant’s Case:
This complaint was withdrawn. |
Summary of Complainant’s Case:
This complaint was withdrawn. |
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.
I find that the claim is well founded and I order the respondent to pay to the complainant €3,135. I find that the claim is well founded and I order the respondent to pay to the complainant €1,000. I find that the claim is well founded and I order the respondent to pay to the complainant €1,200. |
Dated: July 24th 2019
Workplace Relations Commission Adjudication Officer:
Key Words:
Sectoral Employment Order, Terms and Conditions, employee, contractor |