ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00029108

Parties:

Complaint:

Date of Adjudication Hearing:  11/12/2020

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

Preliminary Issue:

In correspondence dated 7th of October 2020 a legal representative on behalf of the company stated:

“in her complaint indicates that she is, essentially, a freelancer and was not and never has been an employee of our client.

(As the Complainant)was never an employee during the relevant periods in her complaint,

she is not covered by the Payment of Wages Act, 1991 and therefore, we respectfully

submit, cannot proceed with her claim in this manner.”

At the hearing held on the 11th December 2020 a company representative reiterated that the complainant could not take her case to the Workplace Relations Commission as she was not an employee and solely on a contract for services.

At the hearing the complainant was requested to provide documentary evidence of her loss.

On receipt of the complainant’s documentary evidence the Adjudicator wrote to the respondent on the 18th of December 2020 as follows:

“Dear Mr, anonymised,

The complainant has forwarded invoices and payments made and detailing the claim for

outstanding payments allegedly being withheld by you.

At the hearing you stated that the complainant is not an employee and therefore the WRC

has no jurisdiction to hear the case. The following section was referred by the adjudicator as

the definition of a contract of employment under the Payment of Wages Act, 1991.

The claimant has submitted evidence as requested at the hearing and as part of the

investigation that she has provided translation services to your company. The complainant

has quantified monies allegedly being withheld by her employer which she has stated is

anonymised Translations Limited.

The Act at section 1 defines a contract of employment:

“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;

Please also note the definition of wages under the act:

“wages”, in relation to an employee, means any sums payable to the employee by

the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other

emolument, referable to his employment, whether payable under his contract of

employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his

contract of employment without his having given to the employee the appropriate

prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Please confirm if the complainant performs any work or service for a third party who is not a

client or customer of the complainant and if you are liable to pay the wages as defined in the

Act of the complainant in respect of the work completed by the complainant for that third

party(ies)? And if the monies allegedly remaining outstanding relate to such work completed

by the complainant for a third party(ies) and if the amount as claimed is disputed or

accepted by you as due to her. If disputed, is it disputed in whole or in part and please

specify the amount.

Could you please respond to the questions as set out no later than 8th January 2021?

Yours sincerely,”

On the 8th January 2021 the respondent emailed a reply  as follows:

“Good afternoon ,

Thank you for your email.

Further to your correspondence I would like to confirm again that Ms anonymised has never been an "employee" of anonymised Translations. She has worked in the capacity of a Freelance and independent Polish Translator.

Please find enclosed the relevant documents signed off by Ms anonymised and would like to confirm that the working relationship wasn't as “employer – employee” nor a "employer - employee contract of employment " was signed off between the parties.

I would like to reiterate again that WRC has no jurisdiction in this case since there is a dispute between a contractor - subcontractor and not of an employer - employee as it has been claimed.

The Act at section 1 defines also the following:

“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, 1941 , a harbour authority, a health board or a vocational education committee shall be deemed to

be an employee employed by the authority, board or committee, as the case may be;

“employer”, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;

I have also attached the Irish Revenue’s Code of Practice for Determining Employment or Self-Employment Status of Individuals.

Criteria on whether an individual is an employee

While all of the following factors may not apply, an individual would normally be an employee if he or she:

- Is under the control of another person who directs as to how, when and where 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 the engagements.

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

- Works for one person or for one business.

- Receives expense payments to cover subsistence and/or travel expenses.

- Is entitled to extra pay or time off for overtime.

Criteria on whether an individual is self-employed

While all of the following factors may not apply to the job, an individual would normally be self-employed if he or she:

- Owns his or her own business.

- Is exposed to financial risk by having to bear the cost of making good faulty or substandard work carried out under the contract.

- Assumes responsibility for investment and management in the enterprise.

- Has the opportunity to profit from sound management in the scheduling and performance of engagements and tasks.

- Has control over what is done, how it is done, when and where it is done and whether he or she does it personally.

- Is free to hire other people, on his or her terms, to do the work which has been agreed to be undertaken.

- Can provide the same services to more than one person or business at the same time.”

The respondent relies upon the definition of an employee at section 1; however, ignores the definition of what constitutes an employment contract as defined by the Act to include contracts other than contracts of service where they are:

( 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

While the respondent also relies upon the definition provided by Revenue as a guide to distinguish between a contract of service and for service, that guide relates to the tax treatment of different contracts.

The Payment of Wages Act 1991 in its own right defines an employee and a contract of employment for the purposes of protection to be provided under the Act for unlawful deductions or non-payment of earned wages.  The statutory  definition in the Act applies to a contract where an individual agrees with another person to do or perform work personally. And an employer in the Act is defined as:

“employer”, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;

And a contract of employment is defined as:

any other contract whereby an individual agrees with another person to do or

perform personally any work or service for a third person

In this case the complainant as a freelancer, works under the Translation Services Company who assign her work to complete on their behalf, for third parties.

And wages are defined as:

“wages”, in relation to an employee, means any sums payable to the employee by

the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other

emolument, referable to his employment, whether payable under his contract of

employment or otherwise

 In Boyle [2018] IESC 52 the Chief Justice stated:

9.8 Likewise, the definition of “contract of employment” for the purposes of the 1991 Act clearly includes any person “who is liable to pay the  wages” of the relevant person.

Based on the character of the transactions assigned by the company to the complainant that she personally performed and the definition of a contract of employment for the purposes of the 1991 Act, the complainant can rely on the Act to refer her claim to the Workplace Relations Commission. The matter is properly before me for adjudication.

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Dated:   23rd March 2021

Workplace Relations Commission Adjudication Officer:  Brian Dalton

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