Complainant

Respondent

Parties

Catalin Florin  Oprea

Murphy Fire Protection Specialists Limited

Representatives

  Self-Represented

Dave Murphy

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-00057701-001

12/07/2023

The Complainant submitted a complaint to the WRC under the Payment of Wages Act 1991 on the basis that he was not paid the sum of €2,350 which he claimed by way of invoices to the Respondent in April and May 2023.  The Complainant was engaged by the Respondent as a self-employed tradesman under a contract for service. The Complainant submitted fortnightly invoices for the work done and was paid accordingly. The Respondent submitted that in circumstances where the Complainant was a self-employed tradesman he was not entitled to avail of the protection of the Payment of Wages Act 1991.

It was the Complainant’s position that he is due the sum of €2,350.00 as a result of work done for the Respondent and which he claimed in invoices submitted to the Respondent on the 21st April 2023 and the 8th May 2023. 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 disputed that there was any issue with the quality of his work or that works were missed or had to be remedied. The Complainant confirmed that at all material times he was working on a self-employed basis and that he was responsible for sorting out his own tax affairs.

The Respondent submitted that the Complainant was a self-employed tradesman engaged under a contract for services. He commenced working with the Respondent in or around the 9th September 2022 and was paid when he submitted invoices on a fortnightly basis.  Any work was predicated on the delivery of a service to the Respondent.

The Director gave evidence that the Complainant entered into a relevant contract with the Respondent as principal contractor to carry out work in the construction industry and therefore the relationship was governed by the Constructions Contracts Act 2013 and the Relevant Contractors Tax (RCT). The Respondent was registered to use the Revenue Online Service (ROS) facility and all RCT compliance, filing and payments relating to the Complainant were conducted online using the ROS facility as required by the Revenue Commissioners. The Respondent deducted the relevant construction tax through the ROS portal and the Complainant was liable for his own tax as a self-employed tradesman.  

The relationship between the parties broke down. There was a dispute as to whether certain works were done and whether other works were missed and these works had to be remedied. The Respondent confirmed that the last two invoices submitted by the Complainant were not paid as a result of this situation.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing.

The Complainant submitted that the Respondent made an unlawful deduction from his wages.

Deductions made by an employer from the wages of an employee are set out in Section 5 of the Payment of Wages Act 1991 Act (hereinafter referred to as “the 1991 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”.

Section 1 of the 1991 Act deals with the interpretations relevant to the 1991 Act and includes the following:

“ ”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”.

“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;

“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, a health board or a member of staff of an education and training board shall be deemed to be an employee employed by the authority or board, 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;

It was not disputed that the Complainant was engaged on a contract for services. There was no evidence provided by the Complainant that he had a legal entitlement to the monies he alleged were due and owing to him from the Respondent.  There was evidence provided of difficulties between the parties and the non-payment of the sums of money is completely linked to these events. 

As the Complainant is not an employee under the interpretation of the 1991 Act, I find that the Complainant cannot avail of the protections of the 1991 Act.

Having regard to the documentation submitted by the parties and the oral evidence provided in relation to this complaint my decision is that the Complainant is not entitled to avail of the protections afforded by the Payment of Wages Act 1991. Consequently, I decide that the complaint is not well-founded.