ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | Complainant | Respondent |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00028298-001 | ||
CA-00028298-003 | ||
CA-00028298-004 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.
In particular, the Complainant herein has referred the following complaint:
A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
Section 5 of the Payment of Wages Act, 1991 sets out the instances wherein deductions can and cannot be made.
Section 5 (1) states that an employer shall not make a deduction from an employee unless:
The deduction is required by Statute or Instrument;
The Deduction is required by the Contract of employment;
The employee has given his prior consent in writing;
Section 5 (2) does allow for some limited instances for deduction in respect of an Act or Omission or for the provision of something to the Employee. This might be where the deduction is specifically provided for in the Contract of Employment (and so on notice), the deduction is considered to be fair and reasonable in all the circumstances and the Employee is on notice of the existence and effect of the said terms which the Employer claims allows for the deduction.
In a preliminary way, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form dated the 9th of May 2019 was submitted within the time allowed.
Background:
The Complainant is looking for 11 weeks of wages which he says were not paid to him |
Summary of Complainant’s Case:
The Complainant was represented, and I was provided with a submission and all relevant evidentiary documentation. The Complainant is looking to be paid remuneration he says is due and owing. |
Summary of Respondent’s Case:
The Respondent was represented by it’s own in house Solicitor. The Respondent says the nature of the relationship between the parties herein is vague and whilst the Complainant may have been a contractor he was never formally engaged as an employee. |
Findings and Conclusions:
I have carefully considered the evidence adduced. The Complainant worked for the Respondent company for 11 weeks at its premises in an industrial estate on the outskirts of Dublin. The Complainant had been provided with his own office and his own in-house email address and had been asked by a Mr. BK for the Respondent to come into the business as its Chief Executive Officer. Mr. BK had known the Complainant of old and saw an opportunity to tap into the Complainant’s wide breadth of relevant industry contacts as being potential clients for the Respondent company. Initially BK had invited the Complainant in to have a look at the business and get a feel for what they did and how it was operated. The Complainant had gone into the workplace on the 11th of December 2018 and I accept that he started to work exclusively for the Respondent company from this time. BK and the Complainant agreed that he would be remunerated in the sum of €150,000.00 annually and that this was the basis on which the Complaint commenced his employment. The Complainant was away for a short period over the Christmas period and on his return, he met with BK and all appeared to be fine and he was advised that the Contract being drawn up per their arrangement was with JK the in-house Solicitor. The proposed Contract of Employment was presented to the Complainant in due course and the Complainant was surprised to note that the Contract was a one-year fixed term Contract at a rate of €150,000.00 gross salary. I fully accept that the fixed term aspect of the Contract was not heretofore discussed between the parties although the intended salary had been tied down. What is clear to me is that when he got this proposed Contract of Employment the Complainant though to reflect on his options herein and in considering those options, he wondered whether he might not maximise on his annual income for the proposed fixed term Contract by becoming a consultant to the business rather than an employee? He suggested this option and there were certainly some discussions around his proposal, and I accept that the matter was not definitively ruled out in the early stage as has been suggested to me. The Respondent witness repeatedly described the Complainant’s employment status to be somehow “floating” at this time though he conceded that the Company maintained the intention of engaging the Complainant as an Employee. The argument that was presented to me was that the Complainant had not signed the Contract with which he had been provided and he therefore could not seek the protections and status afforded to an Employee under a Contract of Employment when the said employment came to a sudden and abrupt end on the 27th of February 2019.
On balance I find I cannot agree with the Respondent’s assessment of the situation. From the 11th of December to the 27th of February (a period of 11 weeks including Christmas leave) the Complainant presented himself in the workplace in the usual way. The Complainant took on an active decision-making role. The Complainant introduced himself as the CEO of the company and whilst he might have been seeking to agree to have his agreed salary paid for in a way that was advantageous to him, he had not insisted on it and had not been told definitively told that such an arrangement was emphatically not going to work for the Respondent.
I am therefore inclined to accept that where both parties had initially agreed to his being a salaried employee and the Contract of Employment engaged him in that capacity and his day to day actions were consistent with this relationship nothing further was agreed which reversed or tainted this initial understanding. I recognise that the Complainant might have been chancing his arm in trying to better his own arrangements in the short term - and both parties agreed that had things gone well in the first year he would have been offered a permeant Contract of Employment. This had been stated by the Respondent. At no time was the Complainant hired as a Consultant. I am therefore satisfied that the claim is well founded and the Complainant an employee of the Respondent and was entitled to be paid for his 11 week period of employment. one way or another whether the Respondent would acquiesce |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00028298-001 This complaint is well-founded and I direct the Respondent to pay to the Complainant the sum of €32,300.00. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00028298-003 The claim for annual leave is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00028298-004 The claim for Public Holidays is not well founded. |
Dated: 23rd September 2019
Workplace Relations Commission Adjudication Officer: