ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00032272
Parties:
| Complainant | Respondent |
Parties | Michal Winciun | Tantek Solutions |
| Complainant | Respondent |
Anonymised Parties |
|
|
Representatives | self | Damien Tansey Solicitors |
Complaint:
Act | Complaint/Dispute 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-00041970-001 | 14/01/2021 |
Date of Adjudication Hearing: 18/01/2023
Workplace Relations Commission Adjudication Officer: John Harraghy
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.
The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.
The parties were advised at the outset that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer on 06/04/2021 that hearings before the Workplace Relations Commission are now held in public. That may result in decisions no longer being anonymised. Both parties were advised that an Adjudication Officer may take evidence on oath or affirmation. Evidence in this case was taken on affirmation.
Background:
The complainant worked for the respondent from 04/01/2021 until 12/01/2021. The respondent submits that this was a subcontractor arrangement and following a breakdown of relations between the complainant and the respondent the respondent terminated the contract. The complainant disputes that he was a subcontractor and believes that he was an employee. The complainant was paid €2,750 per month subject to the submission of an invoice. |
Summary of Complainant’s Case:
The complainant was offered the role with the respondent on a remote basis. He believes that he was an employee and despite assurances that he would receive a contract of employment he never received one. He was sent a provisional e mail which outlined the terms and conditions, and he submits that these never materialised. He commenced in the role on 04/01/2021. On 12/01/2021 he advised the respondent that he would not do any further work until such time as he received a contract of employment. The respondent terminated the contract at that stage. The complainant also gave evidence that he subsequently received “a random payment of €800.00 from the respondent” and he did not submit any invoice in relation to this and he never agreed to such a payment. |
Summary of Respondent’s Case:
The respondent contracted the complainant for services and so was not his employer. At all times he was an independent contractor retained under a contract for services. At no stage did an employer/employee relationship exist. It was submitted on behalf of the respondent that he does not have the locus standi to bring a complaint, firstly because he worked for less than one month and secondly because he was not resident in the State. The respondent provided evidence of copies of e mails which were exchanged with the complainant and the subject line of those contained the words “Subcontractor agreement contract”. The respondent’s representative clarified that the payment of €800.00 to the complaint was for any work he may have done during the 11 days he was working for them. It is the respondent’s position that the complainant is attempting to morph this payment into a salary in order to suit his narrative. |
Findings and Conclusions:
The complainant in this case is seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994. Section 1(1) of that Act defines an “employee” in the following manner: “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 purposes of this Act, a person holding office under, or in the service of the State”. Section 7 of the 1994 Act, as amended by Section 12 of the Employment (Miscellaneous) Provisions Act 2018 provides: “An employee shall not be entitled to present a complaint under Part 4 of the Workplace Relations Act 20156 in respect of a contravention of Section 3(1A) [Failure to provide 5-day statement of core terms] unless the employee has been in the continuous service of the employer for more than one month”. Having considered the submissions and evidence adduced at the hearing it is clear to me that the relationship between the complainant and the respondent was not that of an employer/employee relationship. The complainant clearly had a contract for services with the respondent. |
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.
I find that the complainant was not an employed by the respondent and this complaint is now well founded. |
Dated: 21st February 2023
Workplace Relations Commission Adjudication Officer: John Harraghy
Key Words:
Terms and conditions of employment. Contract for services |