FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : PARAGON VENTURES LIMITED T/A MEFS (REPRESENTED BY HARRIET BURGRSS,B.L.,INSTRUCTED BY SHERIDAN QUINN,SOLICITORS - AND - MR DES CAROLAN DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No: ADJ-00013396 CA-00017692-002. This case is one of several taken by Mr. Carolan, ‘the Complainant’ against Paragon Ventures Ltd, ‘the Respondent’. It is the Complainant’s case that he joined the Respondent company in October 2017 as the Office Manager but that his agreed terms of employment were never implemented. He left the employment in December 2017. The Complainant lodged cases under various employment statutes with the Workplace Relations Commission, (WRC), including this case under the Payment of Wages Act 1991. The Respondent failed to attend the WRC hearing but a communication was received on their behalf disputing that the Complainant had ever been an employee of the Respondent company. There is no formal offer of employment and there is no contract of employment. The Adjudication Officer upheld the complaint and the Respondent appealed to this Court. Summary of Respondent arguments The Complainant was never employed by Paragon Ventures Ltd. He met Mr. Stuart Evans while he was working as a hotel manager and they became friends. It was agreed that they would go into business together. Mr. Evans was not a Director of the Respondent. He was, at the time, in a long term relationship with Ms. Denise Cummins, who was the sole Director of the Respondent. Mr. Evans used the office of the Respondent. Ms. Cummins paid the rent for this office. She was not privy to the business relationship between Mr. Evans and the Complainant. The Respondent company provides furniture, fixtures and fittings to businesses. Mr. Evans’ business provides mechanical and plumbing services. If Ms. Cummins secured contracts, she would recommend Mr. Evans for plumbing work. Mr. Evans was conscious that the Complainant had left his job to work with him and that the venture was not generating income, so he gave the Complainant €500 per week and understood that the Complainant would look after his own tax affairs. Ms. Cummins shared an office with the Complainant for some weeks. She does not understand how the Complainant obtained the employer number for her company, with which he registered himself with Revenue, listing the Respondent as his employer. There was no mutuality of obligation between the Complainant and the Respondent that created an employment relationship. The importance of this was set out inMinister for Agriculture v. Barry and Others (2009) 1 I.R. 215. The Complainant’s relationship with the Respondent was solely that they shared office space. The Complainant claims to have joined the Respondent in October 2017 but his own evidence shows that he remained on the payroll of his previous employer until November 2017. Summary of Complainant’s case The Complainant left a good job to accept an offer from Mr. Stuart Evans to work for the Respondent company. He was promised an annual salary of €65,000 p.a. plus other benefits to work as an Office Manager. It is clear that Mr. Evans is a Shadow Director of the Respondent company and he may have taken this course because of difficulties with creditors. The Complainant set up emails for Ms. Cummins. Mr. Evans and himself using ‘mefs.ie’. This is an acronym of the ‘trading as’ name for the Respondent company, which is ‘Mechanical, Electrical and Facilities Services’. This contradicts assertions that the trade name was bought by the Respondent company after the Complainant’s departure. Ms. Cummins was party to all discussions regarding the employment of the Complainant by the Respondent company. The Complainant left his previous employment in October 2017. He was owed holidays, lieu days and bank holidays which were paid to him on a weekly basis until November 2017. The Respondent failed to live up to the offer made to the Complainant that induced him to give up his job. He only received payment of €500 per week until December 2017, rather than the agreed rate. As the Office Manager, it was the responsibility of the Complainant to ensure that both his and his employer’s tax affairs were in order and he contacted Revenue to ensure this. The Respondent’s claim that Mr. Evans has no link to the company is contradicted by the fact that he is listed as an employee in insurance documentation for the company submitted to the insurance provider. The Complainant would not have given up a good job for the uncertainty of working for Mr Evans as some sort of external contractor. Witness Evidence Ms. Denise Cummins. Ms. Cummins gave evidence that she is the sole director of the Respondent. She said that she did not know the Complainant prior to the events at the heart of this case but that he was a friend of her then partner, Mr. Evans. The witness said that Mr. Evans ran a plumbing business and he had made an arrangement with the Complainant to work together, to which details she was not privy. The witness said that she had, in the past, helped Mr. Evans with his business by taking calls and following up to collect money etc. but that Paragon Ventures Ltd. was her business, separate from that of Mr. Evans. The witness explained that she had put Mr. Evans’ name on the insurance documentation as an employee because she was, at the time, tendering for a contract with Savills’ Auctioneers and she needed to show that she had the capacity to do the work involved. She did not get the contract. She agreed that the Complainant was not listed as an employee on this documentation. The witness said that both Mr. Evans and herself had keys for the office that they shared and for which she paid rent. The Complainant never had keys but she did share the office with him for some weeks, during which time he often complained about Mr Evans, to which she would respond to say that it had nothing to do with her and that the Complainant needed to speak to Mr. Evans. The witness stated that on 8 December 2017, the Complainant had asked to use her office telephone and had called Mr. Evans. The call was on speaker. The conversation between Mr. Evans and the Complainant had escalated into an argument but she had stayed out of it as it had nothing to do with her. The witness said that the Complainant must have gone through her desk without permission to get the company tax details. The witness said that she did not know Mr. John O’ Donovan, a witness for the Complainant. Under cross examination, the witness denied that she was in business with Mr. Evans. She explained that Mr. Evans had owned the ‘mefs’ domain name and that she had taken it over for her business as it described the business. The witness was unable to explain why the insurance documentation regarding the Respondent company was sent to the Complainant. The witness denied being party to discussions regarding the employment of the Complainant. Under questioning from the Court, the witness said that she had emailed Revenue after they contacted her to advise that the Complainant was listed as an employee of her company and that this was after he had left. The witness acknowledged that the company had very little business in the time period in question and she agreed that the Complainant did not appear to be very busy either. However, she denied any suggestion that the company had simply been set up to allow Mr. Evans to continue to trade despite his difficulties with creditors. Mr. Stuart Evans Mr. Evans gave evidence that he was a plumber with a commercial plumbing business. He said that he had been in a long term personal relationship with Ms. Cummins at the time in question and she had, in the past, done some work for him. He said that she set up the Respondent company as her own company. The witness said that it was necessary for him to be listed on insurance policies if he was to be in a position to do any work for the Respondent. The witness explained that he shared office space with Ms. Cummins but that he was often not there. The witness said that he had bought a number of domain names and had given ‘mefs’ to Ms. Cummins for use by the Respondent company. The witness said that he had become friendly with the Complainant when he had done ongoing work at the hotel where the Complainant was a manager. He knew that the Complainant was unhappy in his job due to the working hours. The owners of the hotel were willing to provide financial backing to the witness to set up a company to do insulation work in hotels and schools. The Complainant had said that he had many contacts in the business and the witness recognised that there would be substantial clerical work involved, so they had agreed that the Complainant would work with him in setting up the new business. He had agreed to pay the Complainant €500 per week. It was a casual arrangement that could have developed but the witness said that he had fallen out with the Complainant over a personal matter and the Complainant had ‘walked away’. The witness said that Ms. Cummins was unaware of the arrangements between the Complainant and him and that these arrangements had nothing to do with the Respondent company. Under cross examination, the witness agreed that his sole trader business did some work for the Respondent company. He said that this was done as a favour and was not invoiced. He reiterated that it was necessary for the Respondent company to include him under their insurance in order that he could carry out work for them and for tendering purposes. The witness said that he had bought the ‘mefs’ domain name in mid 2017. Under questioning from the Court, the witness said that there had been options regarding the relationship with the Complainant going forward but it was most likely that it would have become some sort of partnership. He confirmed that no contracts had been exchanged, which he said was not unusual in his experience. The witness confirmed that there had been discussions between the Complainant and himself regarding a salary of €65,000 p.a. and other benefits referred to in the Complainant’s submission but he stressed that none of these had been agreed and that the only agreement was that he would pay the Complainant €500 per week. This was paid out of his personal bank account and had nothing to do with the Respondent. The witness said that at the time in question business was fairly normal but he was finding difficulty in funding jobs. He denied that the Respondent company was a shell company and said that he was managing his debts. Mr. John O’ Donovan Mr. O’ Donovan gave evidence for the Complainant. He explained that they had worked together as managers in the same hotel, through which he also knew Mr. Evans. The witness described a discussion with Mr. Evans on 12 November 2017, in which Mr. Evans had offered him a job with the Respondent company, working out of Listowel for up to €650 per week, ‘into his hand’. Mr. Evans had told him that Ms. Cummins would be in touch and Ms. Cummins had called him later that month to say that there was no work at that time. The Complainant had confirmed to him the contents of his discussion with Ms. Cummins , as he had been sitting with her when she made the call. The witness confirmed the Complainant’s account of how holiday money etc. was handled when somebody left the employment of the hotel and stated that the Complainant had always been proper and correct with documentation. Under cross examination, the witness said that he had been contacted in November 2019 regarding the possibility of giving evidence. When asked why he had only been put forward as a witness shortly before the last hearing, he said that because he had been asked to come forward by the Complainant. The witness confirmed that the offer to him had been made by Mr. Evans and that he had never met Ms. Cummins but he said that he had spoken to her on the telephone and he was crystal clear that the job offer had been with the Respondent company. Mr. Des Carolan Mr. Carolan is the Complainant. The witness swore into evidence the contents of his submission. Under cross examination, the witness accepted that all relevant agreements had been between Mr. Evans and himself but he did not accept that Mr. Evans was not involved with the Respondent company. When asked why he had not told the Court about two invoices submitted after he had left, the witness denied trying to hide anything and noted that he had provided the Court with extensive documentation. The witness denied that he had fraudulently obtained the Respondent’s tax number, noting that, as Office Manager, he had access to all relevant documentation. He denied taking invoices dated subsequent to his departure and said that these had been prepared at the end of November. He denied engaging with a maildrop company in order to discredit the Respondent and said that the correspondence with this company had arisen when he issued details of his WRC complaint to addresses that he had for the company. Under questioning from the Court, the witness denied that he was a contractor for Mr. Evans. The witness accepted that he had been paid by Mr. Evans and not by the Respondent but he said that he took this to be because there was a period of change over and he believed that he was being paid by the Respondent through Mr. Evans. Deliberation and Determination It is axiomatic that for employment law to be applicable, it is necessary for there to be an employer/employee relationship. This case and the related cases taken by the Complainant hinge on this question. Significant argument and documentation was submitted to bolster the claims by the parties to this dispute and what is set out above is an attempt to summarise the points of relevance to the question before the Court. It is the Complainant’s case that he had an employment relationship with the Respondent and it is the Respondent’s case that he did not. In support of the Respondent’s case, there is no evidence of an offer of employment; there is no evidence of a contract of employment; there is no evidence of any payment by the Respondent to the Complainant and there is no evidence of any direct instruction or even formal communication between the listed director of the Respondent to an employee, such as would be a daily norm in an employer/employee relationship. In support of the Complainant’s position there is undisputed evidence that he set up email addresses under the Respondent’s trading name for the Director of the Respondent plus Mr. Evans and the Complainant himself; there is evidence, that the Court found credible, from the witness Mr. O’ Donovan, which appears to link Mr. Evans to the Respondent company; there is the registration for tax purposes of the Respondent as the Complainant’s employer, ( a registration undertaken by the Complainant) and there is the fact that the Respondent listed Mr. Evans as an employee in insurance documentation. There is, it seems to the Court, some circumstantial evidence that might appear to support the Complainant’s position and that warrants close scrutiny. In this regard, however, the Court notes that, while Mr. O’ Donovan’s evidence was credible and does undermine somewhat the credibility of the Respondent, the alleged offer of employment to him does not, of itself, determine that a similar offer was made to the Complainant. The Court also considered in detail the fact that that Mr. Evans was listed as an employee of the Respondent in insurance documentation, something that gives rise to suspicion as to the credibility of the Respondent’s position. However, it is noteworthy that the Complainant himself is not so listed. His explanation that he is covered under a general admin. heading is not, in the view of the Court, persuasive. The Court also views the fact that the email accounts were established as suspicious but not, on its own, determinative. To establish that an employee’s employment rights have been breached, the first requirement on any complainant is to show that they were/are an employee of the Respondent named. In the absence of the normal documentary evidence of an employment relationship, the Court has to scrutinise the evidence that is available. The Court’s view is that some suspicions have been raised. However, the question for the Court is whether such suspicions are, on the balance of probability, sufficient to establish that there was, as the Complainant claims, an employment relationship between the Respondent and him. The Court is not satisfied that the evidence offered, while giving rise to reasonable suspicion, is sufficient for it to conclude that there was an employment relationship in the instant case. Accordingly, the claim must fail. The Decision of the Adjudication Officer is overturned.
NOTE Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary. |
