Complainant

Respondent

Parties

Karim Taib

Bimco Ltd

Complainant

Respondent

Anonymised Parties

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Representatives

  Self

Self

Act

Complaint Reference No.

Date of Receipt

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

CA-00045970-001

03/09/2021

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

CA-00047271-001

19/11/2021

The complainant submitted a complaint under the Payment of Wages Act, 1991 on the basis that he was not paid the sum of €5415.00 which he claimed by way of invoice to the respondent in July 2021.  The complainant commenced working for the respondent on 06/10/2019 under a contract of service, i.e. a contract of employment.  At his request the respondent agreed to change his status to that of self-employed under a contract for service with effect from 01/02/2020. The complainant submitted a monthly invoice for the work done and was paid accordingly.

It is the complainant’s position that he is due the sum of €5415.00 as a result of work done for the respondent and which he claimed in an invoice he submitted in July 2021.  After that date the respondent did not require his services.  It was submitted by the complainant that he is due this money and that the respondent was not entitled to withhold the sum.  The complainant confirmed that he was working on a self-employed basis from 01/02/2020 and that he was responsible for sorting out his own tax affairs.

The respondent agrees that the complainant ceased to be an employee from 01/02/2020.  He continued to do work for the respondent and was paid when he submitted invoices.  There were a number of other contractors in a similar position. Any work was predicated on the delivery of a service to the respondent which was scheduled to finish in July 2021.  The complainant was under pressure to finish this project and the client was anxious to commence site works in July 2021 as these were delayed due to COVID-19 and were now about to commence. When the complainant’s finished doing work for the respondent there it was discovered that there was a significant loss and damages sustained as a result of a deletion by the respondent of files relating to a project he was contributing to.  The respondent was required to spend considerable resources in rectifying the situation.  The respondent confirmed that the last invoice submitted by the complainant was not paid as a result of this situation

There is no dispute in relation to the fact that the complainant was not an employee of the respondent from 01/02/2020.  Prior to that he worked for the respondent for a period of three months.  Both parties made submissions which included details of interactions and discussions which I find were not relevant to the complaint. 

The complainant submitted that the respondent made an unlawful deduction from his wages.  Section 1 of the Payment of Wages Act, 1991, defines wages 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 holiday, sick or maternity pay, or any other emolument, referable to this employment, whether payable under his contract of employment or otherwise”.

Deductions made by an employer from the wages of an employee are set out in Section 5 of the Act as follows:

“5(1) An employer shall not make a deduction from the wages of an employee (or receive 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”.

The Act also defines who is an “employee”:

1.       … “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, or in the service of, the State …….”

The question of a worker’s employment status is a mixed question of both fact and law.  There is a considerable body of jurisprudence in the Superior Courts and in the Labour Court, and in many other common law jurisdictions which has developed and elucidated the correct legal principles to be applied to the determination of disputes of this nature.  The judgement of the Supreme Court in Henry Denny & Sons v The Minister for Social Welfare continues to be the leading authority on the issue as it identifies the approach adopted by the superior courts in this jurisdiction when required to determine issues of employment status.  In the Henry Denny & Sons case the Supreme Court adopted an approach which is often referred to as the “mixed test or reality test”.  This approach requires a decision maker to consider a variety of factors such as the degree of control exercised by the party for whom work is being done over the party actually doing the work, the level of integration of the latter into the former’s business, whether or not the party doing the work has the marks of an entrepreneur in the way he carries out the work in question such that he can be said to be in business for his own account.  The Court held that the emphasis to be placed on any one or more of these factors was to be determined by the particular facts of the case, in light of the applicable legal principles:

“The criteria which should be adopted in considering whether a particular employment, in the context of legislation such as the Act of 1981, is to be regarded as a contract “for service” or a contract “of service” having been the subject of a number of decisions in Ireland and England.  In some cases, different terminology is used, and the distinction is stated as being between a “servant” and “independent contractor”.  However, there is a consensus to be found in the authorities that each case must be considered in the light of its particular facts and of the general principles which the courts have developed: see the observations of Barr J, in McAuliffe v Minister for Social Welfare [1995] 2 IR 238”.

The court also emphasised that while it should have regard to the terms of any written agreement in place between the parties to an employment arrangement, the terms of such an agreement cannot be regarded as determinative of the true meaning of their relationship.

It is not disputed that the complainant in this case meets the criteria for self-employment and in that context, he was engaged on a contract for services.  The complainant or the respondent did not provide any written agreement that was made between the parties on or after 01/02/2020.   There was no evidence provided by the complainant that he had a legal entitlement to the money he alleges is due from the respondent.  There was evidence provided of difficulties between the parties and the non-payment of a sum of money is completely linked to these events.  In the absence of specific details in relation to any contractual arrangements in place I have concluded that the complainant is not an employee and so cannot rely on the Payment of Wages Act, 1991 to recover any monies that he alleges were not paid.

I determine that this complaint is not well founded as this is not a complaint that the Workplace Relations Commission can adjudicate on.

Employment status.  Employee.  Contract for services.