Complainant

Respondent

Anonymised Parties

Driver

Transport and Courier Service

Representatives

John Keenan JRK Business Services

Peninsula Group Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00017463-001

15/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00017463-002

15/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00017463-003

15/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00017463-004

15/02/2018

The respondent corrected the name of the respondent and agreed to proceed. The complainant consented.

The change is reflected in the decision.

Jurisdictional Issue.

The respondent maintains that the complainant is not an employee but a driver providing services to the respondent and that the adjudicator is precluded from hearing the complaint as provided for in section 8 of the Unfair Dismissals Act 1977.

The complainant rejects the respondent’s assertion that he is not an employee.

He commenced employment with the respondent as a courier service driver on 15 October 2015. He worked 55 hours a week and earned €900 per week.

He was summarily dismissed by the respondent on 7 December 2017.

He submitted his 4 complaints to the WRC on 15 /2/ 2018.

CA-00017463-001.Complaint under Section 8 of the Unfair Dismissals Act, 1977.

The adjudicator advised that without prejudice to the respondent’s case that he was not an employee, she would hear the complaint of unfair dismissal. The decision would address the preliminary issue.

In support of his case that he is an employee as defined in section 1 of the Act, the complainant states that he

was required to work exclusively for the respondent;

reported each morning to the depot and worked the hours specified by his employer which was 7 am to 6 pm, Monday to Friday;

was obliged to wear the respondent’s uniform;

had the respondent’s logo emblazoned on his van at the respondent’s request and at the beginning of his employment at all times;

had to submit a book of” Depot Van Daily Check Sheets” to the respondent in respect of each day’s attendance;

was issued with a supply of Collection /Delivery Dockets in relation to each assignment. He had to drop ‘a sorry I missed you’ card with the respondent’s name on it when a customer was not available to accept or receive an item;

had to return a handheld scanner each day to the depot which recorded deliveries and consignments assigned to him and transmitted data into the respondent’s system each day.

The complainant gave evidence

He commenced work in October 2015. Mr M, supervisor/manager with the respondent advised him that there was a job available. He was interviewed by the respondent Director, Mr. L and the respondent’s supervisor/manager, Mr M. He asked the complainant to do a day’s training on a hand-held scanner the next day. On the morning of the training the respondent offered him €180 a day. There was no negotiation on the rate. The respondent did not provide him with a contract of employment

The complainant began deliveries the next day. His job was to sweep up the residue, to take the overflow. The complainant states that either Mr L or Mr M told him that he had to be in at 7am Monday – Friday like all other employees. He worked from 7am to 6.30 – 7pm each day. He worked occasional Saturdays. On arrival in the morning he would then ask Mr. L or Mr. M to indicate his delivery area. He had to wait for the other vans to depart before he could come in with his van to pick up the load for delivery. He worked out of one of the two depots owned by the respondent.

His work was not confined to delivering goods in his own van. Mr. M, the supervisor, asked him to drive a 40 ft truck and a 7.5-ton truck to collect goods in the industrial estate where the respondent’s goods depot was located as they were stuck for drivers to collect goods. This happened about once every 3 months.

The complainant states that he had two fixed areas for delivery. In relation to the different areas noted on the respondent’s log, which exceeded two, he states this is because he was instructed by the respondent to bring staff home.

The complainant advised that he did not make a call every day to establish the work assignment. He never had to ask the respondent was he due in day 1, 2, 3 or 4 as he was an employee. In the first couple of weeks he was told frequently to come in and then after that, he just came in.

He was paid a weekly wage of €900. He was instructed to submit letter headed invoices, including VAT at 23% and which were to be endorsed as” Van and Driver hire”.

The complainant states that some contractors did not wear a uniform, yet he did. The complainant states that the advertising of the company name on the side of his van contradicts the claim that he was an independent contractor.

The complainant used the scanner to scan the parcels. He had to enter the estimated time of delivery of goods. Sometimes while en route to destination A, the office would phone him and ask him to do a collection elsewhere. He states that he was told what to do when where and how.

He did not work for himself or anybody else while employed by the respondent.

He did not question the respondent’s failure to give him a pay slip, deny him paid leave or instruct him to charge VAT as he did not want to endanger his continued employment.

He first sought professional advice in January 2018

Overall the complainant refers to the Revenue checklist as to whether the complainant is an independent self-employed contractor or an employee. That list identifies the elements of an employer- employee relationship as follows:

The employee

“Is under the control of another person who directs as to how the work is to be carried out.

Supplies labour only.

Receives a fixed hourly/weekly/monthly wage.

Cannot subcontract the work. If the work can be subcontracted and paid on by the person subcontracting the work, the employer/employee relationship may simply be transferred on.

Does not supply materials for the job.

Does not provide equipment other than the small tools of the trade. The provision of tools or equipment might not have a significant bearing on coming to a conclusion that employment status may be appropriate having regard to all the circumstances of a particular case.

Is not exposed to personal financial risk in carrying out the work.

Does not assume any responsibility for investment and management in the business.

Does not have the opportunity to profit from sound management in the scheduling of engagements or in the performance of tasks arising from engagements.

Works set hours or a given number of hours per week or month.

Works for one person or one business.”

The complainant states that his employment conforms to the above elements with the exception of providing a van and registration for tax compliance - both done at the insistence of the respondent and done merely to conceal the real relationship and to enable the respondent to evade his responsibilities towards the employee. The complainant asserts that he is an employee.

The respondent asked him why he had never sought a pay slip or a copy of a contract or applied for annual leave. He stated that he accepted the business model used by the respondent.

Unfair Dismissal

The complainant points to his summary dismissal. He was unable to attend work on 7 December 2017 due to a shoulder injury. He contacted the supervisor, Mr. M, to tell him that his shoulder was badly injured to which Mr M replied” for f…’s sake’. Ten minutes later he got a text from the respondent director. He received a text one hour later to state

“Your services are no longer required at Depot x. Take the sign writing off the van and hand the uniform back”

He was replaced on the 7 December. He heard nothing further from the respondent.

He had to undergo two surgeries for the shoulder injury on 18 December 2017 and on 8 March 2018.

He has applied for disability benefit. He was declared unfit to work from 22 March 2018 to date.

He did apply to one company for work. He has not worked since his dismissal.

On cross examination the complainant was asked how he had the sign of another courier company, company B, on the roof of his van. He stated that he did not authorise company B to put its logo on the roof of his van and he couldn’t explain it.

CA-00017463-002. Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973.

The complainant did not receive his paid notice.

CA-00017463-003.Complaint under section 27 of the Organisation of Working Time Act, 1997.

The complainant did not receive his paid annual leave entitlement.

CA-00017463-004.Complaint under section 27 of the Organisation of Working Time Act, 1997.

The complainant did not receive his paid entitlement for public holidays.

CA-00017463-001.Complaint under Section 8 of the Unfair Dismissals Act, 1977.

Witness 1 Mr L, the Director gave evidence. The respondent has been operating his business for 3 years. Contrary to what was asserted, contractors don’t outnumber employees in the industry. The witness stated that he has 17 employees and 6 contractors, representing 74% and 26% of his drivers respectively.

The complainant contacted him stating that he had heard from a friend that the respondent was seeking contract drivers. He entered into had a verbal agreement with the complainant for him to provide services to the respondent. As he was not an employee he was not provided with a contract. The direct employees had contracts of employment.

The rate of pay was agreed between the respondent and the complainant. In reply to a question as to how rates were settled, the witness states that he paid him a daily rate of €180 and he settled on €120 for Saturdays. Mr L states that the average day was 8.30-6pm. The rate did not vary as overall number of hours were constant. Mr L advised that 4 contactors are on the same rate as the complainant and two contractors are on different rates. Mr L states that the complainant never disputed the rate offered.

The respondent never guaranteed a set number of hours for the complainant. The complainant could work his own hours. He could refuse work and was not subject to disciplinary proceeding for same unlike employees. If he was unavailable, the complainant would ring Mr L and tell him he couldn’t do job whereas direct employees who were unavailable had to book annual leave and produce certs if sick. The respondent submitted a record of direct employees’ work to demonstrate that they worked full weeks except for holidays which are recorded, whereas the complainant did not always work full weeks and was unavailable on many weeks. Mr L advised that sometimes he did not require him to attend so he did not call him, and this is evident in the logs submitted.

The respondent disputes that he had a fixed route as routes were not fixed for contractors. The complainant drives on more routes as the logs indicate.

The complainant was free to sub-contract his work to a third party.

The complainant was free to terminate the employment.

The reason that he was required to wear the respondent’s uniform was, so he would be identifiable to the respondent’s customers. Neither direct employees or contractors had to pay for uniforms.

Direct employees were provided with vans on fixed routes and had to start work at 7 am. The complainant could come in at 8 – 8.30. The witness stated that very occasionally he would come in at 7am, depending on the load.

The respondent described the complainant as a good and experienced driver.

The complainant worked with the respondent for many months and had no logo on his van. Mr. L told him to take his own logo off and to put the company logo on van. He previously worked for the company and used no logo.

Employees were assigned to fixed routes, were on a salary and drove the respondent’s vans. Contractors provided their own vans.

The respondent addressed the Revenue checklist for determining whether one is on a contract of services or a contract for services,

The complainant did control his work. The witness states that the complainant did declare himself to be unavailable as evidenced in the logs. The respondent contests the complainant’s argument that the provision of a scanner to him is evidence of control over his work. The scanner was used to identify delivery loads for the day. All drivers including the complainant needed the scanner to read the bar code on a parcel containing the intended recipient’s details. Goods to be delivered were conveyed through the scanner. He used many different scanners belonging to different employees whereas employees had one scanner, their own scanner as evidenced in documents submitted.

The complainant provided materials in the form of his van

He could sub-contract his work though he did not.

He submitted invoices, copies of which were submitted and charged VAT at 23% for what he termed “Van and Driver hire”. They were submitted on headed paper with the name of the complainant’s company/ service and mobile number included. The mobile number for the company was the same number used by the complainant on his WRC complaint form and is indistinguishable from his company. The respondent, contrary to what is asserted, never instructed the complainant to put the name of the complainant’s a company/ service on the invoice.

Mr L challenges the complainant’s assertion that his work extended beyond driving and that he was directed to do other tasks. He states that he never requested the complainant to drive a forklift. The complainant never drove one of the respondent’s trucks. The respondent does not possess 40 ft vehicles as claimed.

The respondent notes that the complainant did not lodge a claim under the Terms of Employment (Information) Act 1994 (which is not statute barred) with regards his not receiving a statement of his main terms and conditions in writing. It is respectfully submitted that the claimant has not done so as he was fully aware that he was engaged as an independent contractor. In relation to the Revenue checklist for determining whether one is on a contract for services or a contract for services,

He was exposed to risk because it was his own business.

He could profit in the sense that he set his own hours.

He was allowed carry on his own business.

The respondent submits that the complainant was running his own business and invoiced the respondent for the services which he offered.

The respondent also relies on Mckayed v Forbidden City Ltd T/A Translations.ie (2016 ) IEHC 722 This decision surveyed a number of Irish authorities none of which deny that the concept of mutuality of obligation is a preliminary filter for deciding if it is a contract of services versus a contract for services .This requires that an employer is bound to offer the employee work and the employee is reciprocally obliged to provide same.

Mr Mckayed was a translator. He was required to submit to a code of professional conduct. This code regulated his work to a very extensive degree. He did not charge VAT. Ni Raifeartaigh J. found that the respondent was a customer of the complainant and that the complainant had a contract for services as there was no mutuality of obligation on the respondent to provide a fixed amount of work to the complainant nor a reciprocal obligation on the complainant.

Similarly, in the instant case the evidence shows that the obligation was not fixed. There was no contract. He provided his own equipment with the exception of the uniform and scanner, was responsible for his own tax affairs, including charging the respondent VAT at 23 % for services rendered, negotiated the daily rate, dictated his own hours/ days of week without consequence.

The respondent also points out that he never got a p.45 and yet did not question this, nor the absence of a contract, nor pay slips. The respondent points to the evidence of p35 forms submitted on behalf of the respondent employees. None were submitted on the complainant’s behalf.

The respondent asks the adjudicator to find on the facts as set out which clearly indicate that he is not entitled to the rights and entitlements which flow to an employee. The adjudicator has no jurisdiction to hear the complaint

Unfair Dismissals Complaint

Without prejudice to the respondent’s position on the jurisdictional issue, the respondent denies that the complainant was unfairly dismissed.

The complainant had been engaged to work on 7 December. He failed to turn up. The respondent tried to contact him and failed. The complainant in response to Mr L’s calls contacted him on 7 December and said, “what the f … do you want”. Mr L asked the complainant if he planned to come into work on the 7 December as scheduled and the complainant told him he” could shove the work up his a…”. It was a 2-minute conversation. The respondent engaged another contractor when the complainant did not show up and no explanation was offered. If an employee had spoken to him like that he would have brought the employee in and reprimanded him.

The complainant had never advised the respondent of any injury or of the likelihood of any surgery.   He states that he was dismissed by text message, yet he cannot produce a copy of the text message. There was no text message.

The complainant resigned.

The respondent’s representative states that If the complainant believed himself to be an employee why did he not use the grievance procedure to address any alleged unfair treatment or refusal to provide him with benefits such as leave of leave? He did not use the grievance procedure prior to resignation. The respondent denies that he shouted at him on the phone. The Respondent refers to the decision of An Employee v An Employer (UD720/2006) where the Tribunal held that “the claimant did not exhaust the grievance procedure made available to him and this proves fatal to the claimant’s case.” The Respondent also relies on the decision that the Tribunal in Donegan v Co. Limerick VEC (UD828/2011) held that “the Respondent’s conduct was not so unfair or damaging to the Claimant’s rights and entitlements that she had no option but to resign from her position.”

There were no raised voices on the 7th December 2017, nor did the respondent engage in any argument with the complainant but rather, the complainant lost his temper not speaking to the respondent further when the respondent made a simple enquiry as to his whereabouts having engaged his services the previous evening.

The respondent maintains that the complainant left the employment. They refer to the case of Debbie Kearns v Silverfern Properties Ltd. [2013] 2 JIEC 0701 where the EAT held that “In order to succeed in a claim of constructive dismissal a claimant must show, that either their contractual terms were altered in such a way, going to the root of the contract, as to justify their claim or the conduct of the employer was so unreasonable as to justify the claim of constructive dismissal.”

The respondent invites the Adjudication Officer to find that the claim for unfair dismissal is not well founded and should fail.

Mitigation:

The respondent refers to the obligation to mitigate one’s loss as per Section 7(2)(c) of the Act.

The Respondent relies on the decision of Coad v Euro base (UD1138/2013) concerning the obligation to mitigate one’s loss and argues that the complainant has failed to do so. The complainant also indicated that he had surgery in December 2017 and further surgery was planned “in the coming weeks.” Without prejudice to the respondent’s position, the respondent requests that the Adjudication Officer consider this along with the claimant’s own contribution to the situation in determining an award that is proportionate in the circumstances.

CA-00017463-002. Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973.

The complainant is not entitled to any notice pay in circumstances whereby he was (a) never employed by the respondent and (b) in the alternative, resigned from his employment in December 2017. Should the Adjudication Officer find that the claimant was unfairly dismissed, which is denied, the legislation provides for no more than 2 weeks’ notice pay.

CA-00017463-003.Complaint under section 27 of the Organisation of Working Time Act, 1997.

The complainant alleges in the first instance that he did not receive any paid holiday during his 2 years’ employment. The claimant was not an employee and therefore was not entitled to accrue annual leave entitlements. Without prejudice to the respondent’s position, it is submitted that the respondent’s leave year runs from January to December and the relevant reference period falls between 15th February 2018 to the 16th February 2017. With regards to 2016, the claimant was unavailable for work in weeks 18 through 21 and weeks 36 through 38 and week 43.

CA-00017463-004. Complaint under section 27 of the Organisation of Working Time Act, 1997.

The claimant was not an employee for the purpose of public holiday payments and the company does not provide a service on public holidays. Without prejudice to the respondent’s position, the reference period to be considered falls between the 15th February 2018 and the 16th August 2017.The complainant failed to turn up for any jobs after the 6th December 2017 and therefore was not engaged for work on the January 2018 public holiday. The claimant was also not paid for the December 2017 public holidays.

CA-00017463-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

Jurisdictional Issue

It is necessary to identify which contract governed the complainant’s employment so as to establish if I have jurisdiction to hear these four complaints.

The complainant submitted arguments as to why he should be deemed to be employed under a contract of service. He did not have a contract of employment. Accordingly, it is necessary to look at the constituent elements of his working relationship with the respondent and their compatibility with the definition of a contract of service as set out in case law and other authorities.

His employment relationship with the respondent was characterised by the following features:

Control of work and or hours

The logs presented by the respondent and not disputed by the complainant indicate that he did not work a constant 5-day week like the direct employees whose logs confirm that they did.

The logs indicate that in 2016 he was unavailable for 7 weeks. He does state that he suffered a serious infection and that he was sick out for 4 weeks. He showed no evidence of having claimed or received disability benefit which would be an indicator that he believed he was an employee. He states as well that he did not seek leave for the other 3 weeks. He states that he never got the chance to apply for leave but does not explain how or why he was not paid for the three weeks or why he did not seek payment for these 3 weeks for which he was unavailable. The fact that he did not seek or take leave of itself is not determinative of a contract for services status. But in maintaining that he did not receive leave, it is noticeable that he postponed seeking payment for his statutory leave until 2018, after he had left.

In 2017, his logs show that in   9 of the 52 weeks he worked 4 weekdays, in another 5 of these weeks, he worked 3 days and in another 2 of these weeks he worked 1 day a week. It is not the case that non- full-time work is automatically determinative of a contact for services, but it shows a pattern of work different to the direct employees. The complainant presented no evidence to the effect that the respondent refused him work or that he was unhappy with the assignments. In these circumstances it is reasonable to concluded that it was the complainant’s choice as to the number of hours /days worked. This suggests that he exercised control over his work not seen on the working pattern of direct employees. The fact that he was unavailable on 72 working weekdays during the course of his employment days is not helpful to the complainant’s argument.

His logs contrary to what he states show him to operate not on two routes but in a wide variety of routes. Again, an employer could need a floater amongst his employees, but his evidence that he worked constant routes comes under strain when faced with the logs.

His evidence was that he did not depart with his load until 8.30 so it’s unclear why he would have to commence at 7am like the direct employees.

He states that he never had to ask the respondent was he due in day 1, 2, 3 or 4 as he was an employee. But he also stated in evidence that in the first couple of weeks he was told frequently to come in and then he just came in. That does not sit easily with a classification of an employee.

What is disputed is that the respondent instructed him to submit the invoices on his own headed paper and to charge Vat for the Van hire and Driver. The complainant submitted invoices on his own headed paper and claimed Vat at 23 %. The respondent’s evidence rings truer.

The respondent’s reliance on the fact that he had different routes unlike other drivers who had the same route, that he was floater is indicative of the fact that he did not have a contract of services is not sufficient to eliminate employee status. An employer could well have employees who are mobile.

The fact that he used different scanners to those used by the direct employees is neither here nor there.


The complainant did not allow others to use his van

The Law.

In Henry Denny and Sons (Ireland) Ltd v Minister for Social Welfare, 1997 IESC. Keane J stated at page 50 …. “in general, a person will be regarded as providing his or her service under a contract of service and not as an independent contractor where he/ she is performing those services for another person and not for himself or herself. The degree of control exercised over how the work is to be performed, although a factor to be taken into account is not decisive. The inference that the person engaged in business on his or her own account can be more readily drawn from where he or she provides the necessary premises or equipment or some other form of investment, where he or she employs others to assist in the business and where the profit which he or she derives from the business is dependent on the efficiency with which it is conducted by him or her”. Keane J went on to observe that the complainant in that case-a demonstrator drawn from a panel of demonstrators in a supermarket had a contract of services. She

“was provided with equipment and clothing by the appellant…. she made no contribution financial or otherwise of her own and her remuneration she earned was solely dependent on her providing the demonstrations at the time and places nominated by the appellant……. she was not in a position by better management and resources to ensure for herself a higher profit…. where she was unable to do the work, herself she had to arrange for it to be done by someone else, but the person in question had to be approved by the appellant”.

The essential tool or equipment in the delivery business is the transport. The complainant provided it himself. The remuneration which he could earn was in his control. Identifying what the complainant was to transport and to whom is an essential feature of a driver so providing him with a scanner is not indicative of a level of control similar to that set out in Denny. He couldn’t function as a provider of services or as an employee without that level of integration with the business.

So also the EAT in Forde v Newspread Ltd.UD1699/2013 concluded that a person who delivered newspapers to shops identified by the respondent, provided his own van , charged VAT, was paid a fixed daily rate, received no payslips, was self -employed under a contract for services and did not have jurisdiction to pursue a complaint under the Unfair Dismissals Act 1977.

I am also guided by Code of Practice for Determining Employment or Self Employment, Employment Status Group, Programme for Prosperity and Fairness, 2017, which states that an individual would normally be an employee if he or she:

“Is under the control of another person who directs as to how the work is to be carried out.

Supplies labour only.

Receives a fixed hourly/weekly/monthly wage.

Cannot subcontract the work. If the work can be subcontracted and paid on by the person subcontracting the work, the employer/employee relationship may simply be transferred on.

Does not supply materials for the job.

Does not provide equipment other than the small tools of the trade. The provision of tools or equipment might not have a significant bearing on coming to a conclusion that employment status may be appropriate having regard to all the circumstances of a particular case.

Is not exposed to personal financial risk in carrying out the work.

Does not assume any responsibility for investment and management in the business.

Does not have the opportunity to profit from sound management in the scheduling of engagements or in the performance of tasks arising from engagements.

Works set hours or a given number of hours per week or month.

Works for one person or one business.”

It has been held that each case must be decided on its own facts. Putting the facts of the instant case through the filter of the above code, I do not find that the provision of a scanner with the details of the contents/goods to be delivered and the destination of same is indicative of the kind of control necessary to demonstrate that it is a contract of service as advanced in other cases. Neither the respondent nor a contractor nor an employee could function without those details. Weekly payment is not automatically determinative of a contract of services; it could be an administrative convenience. He had to fill in a daily business schedule but what he submitted in evidence was an unsigned copy of a check on his van. He supplied the van which could hardly be classified as” the small tools of the trade”.

The respondent’s evidence was more consistent. I find it hard to believe the complainant’s evidence that he was coerced into submitting invoices and Vat charges for a driver and a van for hire.

He was never given a contract of employment. He did not file a complaint under the Terms of Employment (Information) Act, 1994.

Cumulatively, the features of his employment as set out above, the inconsistency in his evidence, the law and the already referenced Code lead me to conclude that the complainant did not have a contract of services.

Section 8.1 of the Act of 1977 as amended confers jurisdiction on an employee (as defined in section 1(c) of the Act) to seek redress against his employer.

I find that the complainant is not employed on a contract of service. I do not have jurisdiction to hear the complaint of unfair dismissal.

CA-00017463-002. Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973.

Section 11 of the Act does not confer jurisdiction on the complainant to have his complaint heard under this act bearing in mind the definition of employee contained in section 1 of the Act of 1973.

CA-00017463-003.Complaint under section 27 of the Organisation of Working Time Act, 1997.

Section 27(2) of the Act denies me jurisdiction to hear this complaint.

CA-00017463-004.Complaint under section 27 of the Organisation of Working Time Act, 1997.

Section 27(2) of the Act denies me jurisdiction to hear this complaint.

CA-00017463-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

I do not have jurisdiction to hear this complaint

CA-00017463-002. Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973.

I do not have jurisdiction to hear this complaint

CA-00017463-003.Complaint under section 27 of the Organisation of Working Time Act, 1997.

I do not have jurisdiction to hear this complaint

CA-00017463-004.Complaint under section 27 of the Organisation of Working Time Act, 1997.

I do not have jurisdiction to hear this complaint

Contract for services; unfair dismissal; jurisdiction to hear complaints.