Complainant

Respondent

Parties

Paul  Nolan

Sean Leydon

Representatives

Mr. Edmond Shanahan BL, instructed by Berwick Solicitors

Mr. Diorai Ford, John M. Ford & Son Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00038473-005

01/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00038473-006

01/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00038473-007

01/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00038473-008

01/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00038473-009

01/07/2020

The Respondent to this matter is an owner of a B&B in Galway City. The Complainant was, for a time, a resident in the Respondent’s premises and alleges that he was, for this time, the Respondent’s employee. Following from the same, the Complainant alleged that he did not receive any of his statutory entitlements throughout this alleged employment and consequently, the Respondent is in breach of the legislation listed above. By response, the Respondent submitted that the Complainant was never in fact his employee. They submitted that he was simply a resident in the premises with no employment related functions. Following from the same, they submitted that the Complainant did not enjoy jurisdiction to being the complaints listed above.

A hearing in relation to this matter was convened for, and finalised on, 16th May 2022. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

Both parties issued substantial submissions in advance of the hearing. The Complainant gave evidence in support of his own complaint. In circumstances whereby the preliminary point raised by the Respondent will be determinative of the complaints in the event that it is successful, this matter will be considered in advance of the substantive complaints. 

In evidence, the Complainant stated that in late November 2019 he observed an advertisement in a local newspaper. This advertisement offered live-in accommodation for a person who was willing to “look after” a city centre guest house in the evening. The advertisement also offered the option to “work during the day if necessary”. The Complainant answered this advertisement, and shortly thereafter met with the Respondent to discuss the arrangement. Following two meetings in relation to the same, it was agreed that the Complainant would not take up the activities during the day, but would instead avail of the free accommodation element of the arrangement. In respect of the same, the Respondent’s premises had a number of long-terms let to either students or those that were housed by the County Council. The Respondent did not reside at the premises, and being of advanced years, was rarely present at the premises. The Complainant agreed that he would report any unusual activities to the Respondent in exchange for free accommodation in the guest house. During these meetings no mention was made of a rate of pay or any other indications of an employment status.

On this basis, the Complainant moved into the premises on 19th January 2020. Approximately nine weeks thereafter, the national lockdown on foot of the Covid-19 pandemic took effect and the guest house took no further bookings. Notwithstanding the same, the Complainant submitted that he was still required to report to the Respondent regarding the activities of a small number of residents, in particualr those housed by the Council. At this point that Complainant stated that he was required to remain at the premises almost all of the time and could only leave to go food shopping. The Complainant stated that in addition to his reporting roles he was required to put out the bins and occasionally clean the kitchen.

The Complainant stated that in May 2020 the Complainant raised the issue of his outstanding pay and entitlements. By response, the Respondent requested that he leave the premises and stated that the arrangement between the parties had finalised. This took the Complainant completely by surprise as he believed that he was performing well. He stated that the Respondent gave him three days’ notice to vacate the property, without any apparent concern regarding his further accommodation plans. The Complainant stated that he did not wish to being the present set of complainants but that the conduct of the Respondent left him with no alternative.

Under cross examination, the Complainant stated that he spoke with the Respondent on an almost daily basis regarding the premises. He accepted that he had no phone records or any other form of evidence in relation to these communications. In this regard, the Complainant referred to two text messages exchanged between the parties, one of which stated that a party had booked in and another stating that a tradesman had arrived. It was put to the Complainant that these constituted the entirety of the communications between the parties for the arrangement, by response the Complainant stated that the majority of the reports occurred over the phone. It was further put to the Complainant that the duties he described, putting out the bins and occasionally cleaning the kitchen, would be duties expected of any tenant in a property. Finally, the Complainant accepted that he had a day job during the early part of the engagement, he accepted that he did not have any duties regarding the general cleaning, housekeeping or maintenance of the premises.

In answer to a question posed by the Adjudicator, the Complainant stated that he worked an average of 55 hours a week prior to the imposition of the Covid-19 restrictions and an average of 80 hours per week thereafter. When asked for a breakdown of what constituted the Complainant’s duties for these hours, he stated that he worked as a receptionist and security.

By response, the Respondent’s representative denied that the Complainant was ever employed by the Respondent. He stated that the initial advertisement provide for two options, free accommodation on the basis that a person “looks after” the premises and / or working hours during the day. They submitted that this advertisement envisions two distinct relationships, an non-employment arrangement during the evening or an employment arrangement during the day. From the evidence tendered by the Complainant, it is apparent that the first of these arrangements is what occurred, the Complainant agreed to report to the Respondent regarding an unusual activity and in response the Complainant received free accommodation. The Respondent submitted that this arrangement does not constitute an employment relationship and consequently, the Complainant applications must fail. The Respondent further submitted that the Complainant failed to demonstrate any duties assigned to him that might lead a reasonable person to infer an employment relationship, in this regard, the text message submitted by the Complainant would be typical of any tenancy relationship. Finally, the Respondent submitted that the Complainant’s failure to query or request any employment details during the arrangement indicates that he was well aware that the relationship was not one a contract of employment.

The present set of complaints involved a highly unusual set of circumstances regarding the classification of an arrangement between the two parties. The Complainant has alleged that the arrangement whereby he was requested to report on the activities of other tenants in a guest house constituted an employment relationship. On foot of the same, the Complainant has alleged that he is entitled to the various statutory entitlement set out in the impleaded legislation. In the alternative, the Respondent has submitted that the arrangement between the parties was one of the tenant and landlord, with the Complainant’s reports regarding the other tenants acting as consideration in lieu of rent.

In the matter of Barry & Ors v Minister for Agriculture[2008] IEHC 216, Edwards J. held that the initial starting point for examining such a dispute, is to determine the existence or otherwise of a “mutuality of obligation”. In particular, Edwards J held that,

“The requirement of mutuality of obligation is the requirement that there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer. If such mutuality is not present, then either there is no contract at all or whatever contract there is must be a contract for services or something else, but not a contract of service.”

And,

“Accordingly the mutuality of obligation test provides an important filter. Where one party to a work relationship contends that that relationship amounts to a contract of service, it is appropriate that the court or tribunal seized of that issue should in the first instance examine the relationship in question to determine if mutuality of obligation is a feature of it. If there is no mutuality of obligation it is not necessary to go further. Whatever the relationship is, it cannot amount to a contract of service. However, if mutuality of obligation is found to exist the mere fact of its existence is not, of itself, determinative of the nature of the relationship and it is necessary to examine the relationship further.”

More recently, in the matter of Karshan (Midlands Limited) Trading as Domino’s Pizza [2022] IECA 124, the Court of Appeal held that mutuality of obligation did not exist where a drivers were not obliged to work certain shifts and would not face any form of disciplinary sanction for a failure to attend.

In the present case, it is clear that a mutuality of obligation existed between the parties. In particular, the Complainant was obliged to provide a service to the Respondent in exchange for a form of payment. From the evidence tendered it is apparent that the Complainant could not refuse to provide this service without consequence and could not substitute another person to provide this service in his stead.

In the matter of Emo Oil Ltd v Sun Alliance and London Insurance plc [2009] IESC 2 the Supreme Court approved the following passage,

“The basic rules of construction which the court must apply in interpreting the documents which contain the parties’ agreements are not in dispute. The Court’s task is to ascertain the intention of the parties, and the intention must be ascertained from the language they have used, considered in the light of the surrounding circumstances and the object of the contract. Moreover, in attempting to ascertain the presumed intention of the parties the Court should adopt an objective, rather than subjective approach and should consider what would have been the intention of reasonable persons in the positions of the parties”.

Likewise, in the matter of Chris Lavan V Liberty Insurance Ltd [UD 1575/2014], the Employment Appeal Tribunal held that,

“Whether a worker is an employee or self-employed depends on a large number of factors. The Tribunal wishes to stress that the issue is not determined by adding up the number of factors pointing towards employment and comparing that result with the number of factors pointing towards self-employment. It is a matter of the overall effect which is not necessarily the same as the sum total of all individual details. Not all details are of equal weight or importance in any given situation…..When the detailed facts have been established the right approach is to stand back, and look at the picture as a whole.….If the evidence is evenly balanced, the intention of the parties may then decide the issue…”

In this regard, the intentions of the parties regarding their relationship are somewhat unclear. At the outset, the Respondent placed the following two advertisements in a local newspaper,

“Free accommodation to person/persons to run city centre guest house plus wages”

And

“City centre B&B requires live-in position to look after B&B in the evenings with free accommodation included option to work during the day if necessary”

The Respondent’s representative submitted that these advertisements may be interpreted so as to infer an intention to create two separate roles, an employment during the day and a tenancy in the evening. Having considered these, and the evidence of the Complainant, I find that this is not the case. Firstly, both these advertisements appeared in the “situations vacant” section of the paper which is suggestive of an intention to create an employment relationship. Secondly, the first advertisement expressly states that the role will include “wages”. The second advertisement also expressly refers to an option to “work during the day” if necessary. Such a stipulation would indicate that the “live-in” role is work that takes place in the evening.

Notwithstanding the same, I note that the Complainant reached an agreement with the Respondent in the absence of any contractual documentation in relation to the same. In this regard, I note that the Respondent, as the person that issued the advertisement and thereafter engaged the Complainant, had a duty to provide clarity regarding the nature of the engagement. If the engagement was not to be an employment, the Respondent should have clearly established the same and removed any element of ambiguity. Having regard to the absence of any evidence to the contrary, including direct evidence from the Respondent, I find that the parties intended to create an employment relationship from the outset.

In the matter of Camp Hill Communities of Ireland and Elke Williams UDD2155, the Labour Court found that the provision of accommodation (in addition to other benefits) as compensation for services rendered was indicative of an employment relationship. In so finding, the Court established a mutuality of obligation and went on to examine the extent of the Respondent’s control over the Complainant, and the Complainant’s integration into the Respondent’s activities.

Regarding the control test, I note the Complainant’s evidence regarding that the Respondent sought frequent reports regarding any unusual activities on behalf of the other residents. Notwithstanding the same, it appears that the Complainant’s only duty in this regard was to report to the Respondent in this manner. The Respondent did not seek to control any other aspect of the relationship, once these reports were issued, it is apparent that the Respondent was satisfied.

Regarding the integration test, it is apparent that the Complaint did not have an organisation to integrate into. Aside from a housekeeper that came during the morning hours, the Complainant had no co-workers or colleagues of any description.

In the matter of Henry Denny & Sons (Ireland) v Minister for Social Welfare [1998] 1 IR 34, Keane J stated that, in relation to matters regarding employment status,

“Each case must be considered in the light of its particular facts and of the general principles which the courts have developed”.

The factual matrix presented by the instant case is extremely unusual and relates to a casual arrangement between two persons that is not supported by any form of contractual documentation and general involves a scarcity of documentary evidence. Nonetheless, it is apparent that the Complainant answered an advertisement in the “situations vacant” section of the local paper.  Thereafter he entered into an arrangement whereby he would exchange his services and time for a form of compensation. Throughout this arrangement the Complainant remained at the Respondent’s premises and took the Respondent’s direction as to the services to be rendered. It is apparent that the Complainant was not free to decline this work once he entered the arrangement nor was he in a position to substitute another person to provide these services. Having regard to the totality of the foregoing points, I find that the Complainant was engaged under a contract of employment for the period 19th January to 11th May 2020.

Following from the same, the Complainant’s hours of work fall to be determined. As the Respondent was under the impression that the Complainant was not his employee, he did not retain any form of records regarding the Complainant’s hours of work, breaks or payments. The Complainant has alleged that he worked significant amounts of hours, in excess of 70 prior to the March 2020 and in excess of 80 thereafter.

In the matters of Hanningans Butchers -v- Bernek MND 192, the Labour Court approved the following passage from Mahony v. Waterford, Limerick and Western Railway Co., (1900)2 IR273,

“…it is a general rule of law that it lies upon the plaintiff to prove affirmatively all the facts entitling him to relief…”

In the present case the Complainant has set out his duties as making reports to the Respondent, occasionally cleaning the common kitchen area and putting out the bins. Regarding the latter two duties I agree with the Respondent’s representative’s submission that these are duties associated with any tenancy and cannot constitute duties performed under a contract of employment. Regarding the first duty, having regard to the advertisement and the fact that the Complainant was in other employment during the day, I find that these relate to a number of hours in the evening only. In addition to the same, I note for the majority of the Complainant’s employment, the Covid-19 restrictions applied resulting in significantly reduced activity in the guesthouse. Having regard to the foregoing, I find that the Complainant’s duties could not have accounted for any more than two hours per day. Having regard to the foregoing, I find that the Complainant was entitled to be remunerated for 14 hours per week at the rate of the national minimum wage operative the relevant time, or the sum of €141.40.

CA-00038473-005 Complaint under the Terms of Employment (Information) Act

In circumstances whereby the Complainant did not receive a contract at any stage of his employment. I find that the Complainant is well founded and find in favour of the Complainant.

Section 7 of the Act (as amended) empowers me to award compensation not exceeding four weeks remuneration in respect of breach of the Act.

Having regard to the totality of the evidence presented, I award the Complainant the sum of €565.60, or four weeks’ remuneration, in compensation.

CA-00038473-006 Complaint under the Mobile Transport Regulations

This matter was not pursued at the hearing and consequently I find that the same is not well-founded

CA-00038473-007 Complaint under the Terms of Employment (Information) Act

In circumstances whereby this complaint is a duplicate of CA-00038473-005, I find that the same is not well founded.

CA-00038473-008 Complaint under the Organisation of Working Time Act

The Complainant alleged that he did not received payment for his outstanding annual leave on the termination of his employment. In circumstances whereby the Complainant did not receive any payment throughout his employment, I find that this complaint is well-founded.

In evidence the Complainant stated that he worked from the period 19th January 2020 to 11th May 2020, or a period of just over 16 weeks. In circumstances whereby the Complainant worked for two hours per day, the Complainant worked for a total of 224 hours in his employment.

Section 19(1)(a) provides that an employee is entitled to four weeks of annual leave in the event that he accrued 1,365 hours within the leave year. Given that the Complainant did not reach this threshold, his entitlement is calculated by virtue of Section 19(1)(c), or 8 per cent of the hours worked within the leave year. Based on the calculation above, the Complainant accrued a statutory entitlement of 17.92 hours of annual leave, to the value of €180.99 throughout his employment.

Section 27 provides that a decision of an Adjudication Officer shall do one or more of the following:

1.      Declare the complaint was or was not well founded;

2.      Require the Employer to comply with the relevant provision;

3.      Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.

Having regard to the totality of the evidence presented, I find that the Respondent should pay the Complainant the sum of €180.99 in respect of outstanding annual leave, in addition to a further €500 in compensation for the breach of the Act.

CA-00038473-009 Complaint under the Payment of Wages Act

In circumstances whereby the Complainant did not receive any payment for hours worked, I find that this complaint is well-founded.

Regarding redress, Section 6(2) of the Act (as amended) empowers me to award such redress as deemed reasonable in the circumstances, so long as the same does not exceed the total amount of wages owed.

The Complainant commenced employment on 19th January 2020. In this regard I note the operative rate of minimum wage during this period was €9.80. From 1st February 2020 until the end of the employment, the Complainant should have received a rate of €10.10 per hour.

Having regard to the same, and the findings above, I find that the Complainant is entitled to the sum of €2,254.00 in compensation for unpaid wages.

Employment Status, Contract of Employment, Failure to Maintain Records