Complainant

Respondent

Anonymised Parties

An Accounts Assistant

Office Services Provider

Representatives

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-00030283-001

15/08/2019

The Complainant is an unemployed accounts assistant who worked for a period of 3.5 days on a work trial. She claimed she did not receive any payment from the Respondent. The Respondent claims that no contract of employment existed and that there was never an agreement that the hours on work trial should be paid . Complaint CA-0030284-001 was also received for adjudication on the same issue with similar details of claimed non-payment but the Complainant confirmed that this was a duplication and withdrawn. The original Complaint CA-00030283-001 is considered for adjudication.   

The Complainant had an interview with the Respondent on Thursday the 11th of July. She worked that whole day and the following Friday. She worked half a day on the Monday and the following Tuesday. No details of pay were discussed with the Respondent at that time. The Complainant travelled to the work location on the days at a cost to her of €100. The Complainant felt uncomfortable working there. She claimed that she turned up for work on the Wednesday but that nobody showed up. She contacted the Respondent twice by email seeking payment for the days worked.

The Respondent states that she was in business, for 22 years, of providing office and administration services to clients. She advertised the position and the Complainant applied. She rejected the application initially because of a lack of experience but decided to give the Complainant a chance by offering her a trial. The Complainant agreed to this. It was always the position that no contract was offered and that no pay arrangement was agreed. The Complainant mainly observed the operation at hand. The Respondent was expecting the Complainant to turn up on Thursday but instead received the email from the Complainant expressing her discomfort with the position and requesting payment for work.  

The Complainant states that “my employer has not paid me or has paid me less than the amount due to me”. The Complaint was made under the Payment of Wages, Act 1991 (the Act). Section 5 deals with unlawful deductions and the regulations governing deductions made and payments received:

5. Regulation of certain deductions made and payments received by employers

(1) 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…

An employee is defined under section 1. of the Act as:

“employee” means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purpose of this definition, a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act 1956, shall be deemed to be an employee employed by the State or the Government, as the case may be, and an officer or servant of a local authority for the purposes of the[Local Government Act 2001 (as amended by the Local Government Reform Act 2014)], a harbour authority, [the Health Service Executive] or [a member of staff of an education and training board] shall be deemed to be an employee employed by the authority, [Executive] or [board], as the case may be;

A contract of employment is also defined at section 1 of the Act:

“contract of employment” means—

(a) a contract of service or of apprenticeship, and

(b) any other contract whereby an individual agrees with another person to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract) whose status by virtue of the contract is not that of a client or customer of any profession or business undertaking carried on by the individual, and the person who is liable to pay the wages of the individual in respect of the work or service shall be deemed for the purposes of this Act to be his employer,

whether the contract is express or implied and if express, whether it is oral or in writing;

The Complainant can only seek the protection of the Act if it can be shown that she was an employee working under a valid contract of employment, as defined by the Act. The Complainant admits that she was fully aware that she was operating on a trial period. Crucially she accepts that she had not agreed a contract of employment with the Respondent nor was there any agreement on pay. There clearly was no express written contract, nor can it be stated that there was an implied contract, given the fact that the Complainant fully expected that no contract could come into existence without her agreement. The Complainant also plainly stated that she had no intention of working there. I have sympathy for the Complainant; her evidence was frank and honest, and she clearly incurred some expense in travelling to the Respondent’s location. Nevertheless, I must conclude that, based on the evidence presented to me, she was never an employee for the purposes of the Payment of Wages Act, 1991 and therefore she cannot recover under that Act.

I find that the complaint is not well founded therefore the complaint fails.

CA-00030283: I find that the Complainant was never an employee of the Respondent for the purposes of the Payment of Wages Act 1991, therefore the complaint fails.

Payment of Wages, Employment Status.