Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00021174-001

15/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00021174-002

15/08/2018

The Complainant was engaged by the Respondent as an administrator for the management of a mixed use commercial and residential building in Dublin 8. The Complainant is not an owner of a unit nor is he a member of the company however he was a named director of the company for a number of years.

The Complainant contends that he was an employee of the company from 1st June 2013 until 7th June 2018 at which time he was made redundant.

This complaint was received by the Workplace Relations Commission on 15th August 2018.

The Complainant commenced employment on 1st June 2013 and was made redundant on 7th June 2018. He was not paid a statutory redundancy payment and was not given proper notice.

The Complainant stated emphatically that he was an employee of the company and that the company’s statutory tax returns will show this.

The Complainant does not have and has never had a contract of employment with the Respondent and any services provided by him were on his own time and his own terms. The Services provided were done so in a consultancy capacity and the Complainant should be deemed self-employed.

On review of the information available on the Workplace Relations website and Revenue website the following are facts believed to be relevant to any determination of employment status:

The Complainant:

·         Provides services as a consultant to a number of companies /bodies at the same time;

·         Was not under control of another person;

·         Did not work a set number of hours per week;

·         Had full control of his own hours in fulfilling the job;

·         Had control over what was done, how it was done, when and where it was done and whether he did it personally;

·         Was free to hire other people to do the work for the Respondent, e.g. Mr JB was paid a monthly amount to do the bookkeeping and no invoices have been received by the Respondent.

·         Had a fixed place of business from which he provided consultancy services

It should be noted that some invoices relating to work done in the Respondent premises were addressed to (a named consultancy) or to (the Complainant’s name) Property Management Limited.

Furthermore, each year when preparing the budget for the Respondent the Complainant would refer to the money being paid to him as “management company fees” as opposed to wages/salaries.

Entitlement to a Redundancy payment is subject to the following:

·         Be aged over 16 years of age

·         Be in employment that is insurable for all benefits under the social welfare system (PRSI Class A)

·         Have worked continuously for the employer for at least 104 weeks

·         Have been in continuous employment for more that two years if a part-time worker.

On 13th February 2014 the Complainant was issued with a P60 for the tax year ended 31/12/2013, this clearly shows the Complainant to have worked 26 weeks in insurable employment with social insurance contribution class of A0.

At hearing the Complainant also produced a P60 for year ending 2017 that shows he was an employee of the Respondent company. In other financial documents produced at hearing one can see that the Respondent organisation employed one employee.

In reaching a decision in this case it is plain to see that the Complainant was an employee and therefore is entitled to a redundancy payment under the Redundancy Payments Acts 1967. He is also legally entitled to a period of notice under the Minimum Notice and Terms of Employment Act, 1973.

I now order the Respondent Organisation to pay to the Complainant a sum of €1291.68 under the Redundancy Payments Act and a payment in lieu of notice of €468.00 gross under the Minimum Notice and Terms of Employment Act 1973.

Payment of these amounts should be made within 42 days from the date of this notice.                

As outlined above.