Complainant

Respondent

Parties

Maurice  Morgan

GK Munster Couriers Limited

Representatives

Thomas O’Donnell BL, instructed by  English Leahy Solicitors

 Did not attend

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-00043345-001

31/03/2021

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

CA-00043345-002

31/03/2021

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

CA-00043345-003

31/03/2021

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

CA-00043345-004

31/03/2021

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

CA-00043345-005

31/03/2021

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

CA-00043345-006

31/03/2021

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

CA-00043345-008

31/03/2021

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

CA-00043345-009

31/03/2021

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-00043345-010

31/03/2021

The Complainant alleged that he commenced his employment with the Respondent on 22nd June 2020 as a courier and his employment was terminated on 1st February 2021.

The Complainant referred his complaints to the Director General of the WRC on 31st March 2021.

There was no attendance by, or on behalf of the Respondent at the adjudication hearing. The complaints were received by the WRC on 31st March 2021 and forwarded to the Respondent on 14th April 2021.  Correspondence informing the parties of the hearing to be held on 28th May 2021 issued on 29th April 2021. On 27th May 2021, the WRC received email correspondence with submissions from Carmody & Company Solicitors, on behalf of the Respondent.

The case was part—heard on 28th May 2021 by an Adjudication Officer. However, the parties were subsequently informed that the Adjudication Officer had ceased to provide a service to the WRC and that a new Adjudication Officer would be assigned, and the case would be scheduled for a de novo hearing as a matter of priority. On 2nd August 2022 correspondence issued outlining details for a de novo hearing to be held on 22nd September 2022.

On 4th August 2022, the WRC received correspondence from Carmody & Company Solicitors confirming that they no longer act for the Respondent and that the Respondent had applied for a voluntary strike off.

On 8th August 2022, Mr. Keith Roche, on behalf of the Respondent, applied for a postponement of the hearing. On 24th August 2022, the Respondent was informed that the postponement application was refused, and that hearing would proceed as scheduled.

There was no attendance by, or on behalf of, the Respondent at the adjudication hearing.

There has been no communication from, or on behalf of the Respondent post-hearing explaining the Respondent’s non-attendance. 

I am satisfied that the Respondent was properly notified of the arrangements for the hearing.

The Respondent’s representative, in their written submission of 27th May 2021 raised the preliminary matter of the Complainant’s employment status. The Respondent asserted that the Complainant was a self-employed contractor from June 2020 until February 2021.

It was submitted, on behalf of the Respondent, that the Complainant approached the Respondent shortly after it had commenced trading and advised that he had heard that they were looking for drivers. During that conversation, the Complainant advised that he had no van, but that if he secured the contract with the Respondent that he would be able to purchase a van in the future. A copy of a text message from the Complainant in December 2020 informing that he been trying to buy a van for two months was furnished. The Respondent asserts that the text message supports the Respondent’s claim that the Complainant was a self-employed contractor. It was mutually agreed that the Complainant would commence work as a self-employed contractor and that a van would be provided for him.

The Complainant was advised that the terms of the agreement were €130.00 for every day worked.

The Respondent agreed to provide a van and insurance to the Complainant. The Respondent entered into a monthly rental agreement with a third party for the provision of the van and insurance. The Respondent relied on a text message which was sent to Mr. Keith Roche, Director on the 21st June 2021 stating; "we are on the same page Keith, 130€ a day after everything". The "after everything" referred to after the cost of the van hire and the insurance.

It was agreed that the Complainant was paid €130.00 per day. If the Complainant worked 5 days a week, he was paid €650.00 a week. When the Complainant worked 6 days a week, he was paid €780.00. It was a matter for the Complainant to decide what days he worked and how many days he worked a week.

During the Christmas period, the Complainant hired his wife to work for him. A separate agreement was entered into during that period where a flat rate of €2.50 per parcel was offered for any self-employed contractors that wanted to take on additional work or if they wished to hire additional staff. The Complainant employed his wife and subsequently submitted an invoice on 14th December 2020 for 373 deliveries totally €932.50. The cheque was made payable to the Complainant, as he was the contractor. It was a matter for the Complainant to pay his own employees.

The Respondent furnished a copy of an invoice allegedly submitted by the Complainant and a copy of a cheque. Screenshots of text exchange between the Complainant and the Respondent where the Respondent is requesting an invoice from the Complainant were also furnished.

The Respondent submitted that the Complainant was free to choose what hours he worked and what days he worked. He had autonomy over his working week. He had control over when he started work, how long he took to do a route, where he went. The Complainant was also free to arrange his own appointments / schedule during the day as demonstrated by the text messages furnished by the Respondent.

The Respondent cited Ben O' Sullivan v Liberty Insurance Limited USDI 573/2014, and ADJ-00013828 A Delivery Driver v A Delivery Business.

Mr O’Donnell BL, on behalf of the Complainant submits that there is no basis to say that the Complainant was an independent contractor.

The Complainant was employed by the Respondent as a courier / van driver delivering parcels to private homes and businesses from June 2020 until 1st or 3rd February 2021 when his employment was terminated without notice. The Complainant did not receive his terms and conditions of employment. In the absence of contract of employment, the Complainant sought clarification of his wages by text message to the Director, Keith Roche on 21st June 2020

“we are on the same page Keith, €130 a day after everything”

The Director confirmed this to be the position by relying text

“Yeah on the same page”

The Complainant understood that this was his “take home pay” after taxes and the Respondent was responsible for discharging taxes. The Complainant understood his standard work week to be 8 hours per day 5 days per week at €130 per day = €650 per week. When the Complainant worked 6 days in a week, he usually was paid €780 per week (6x €130).

It was submitted that the Respondent was very busy in the Christmas 2020 period and the Complainant assisted it in finding additional drivers. The Complainant’s wife helped the Respondent out, she used her own car. The Complainant disputes that he subcontracted her. The Respondent was desperately looking for people and it asked the Complainant’s wife to deliver packages in her own car. She was paid cash. The Complainant submits that the invoice furnished by the Respondent was addressed to Nightline Group, Unit 5 Mygan Park, Jamestown Road, Finglas, Dublin, a company unknown to the Complainant. The Complainant submits that it is not his signature on the invoice. The Complainant did not supply invoices. The Complainant did receive a once-off payment by a cheque for work the Complainant’s wife did for the Respondent. The Complainant was paid per day, not per delivery as per the invoice. The Complainant had not seen the invoice prior to seeing the Respondent’s submission.

It was submitted, on behalf of the Complainant, that the text messages between the Complainant and the Respondent show that he had constantly looked for payslips, annual leave, etc. The Respondent never replied to say that the Complainant was not an employee.

Furthermore, it was submitted that it was the Respondent who determined the hours of work. The text messages show that the Complainant asked whether he would be working on the next day and the Respondent confirmed whether or not he would, and the Respondent gave the days the Complainant was required to work.

It was submitted that the Respondent provided the vehicle and insurance. The Complainant did not hire helpers. The Complainant’s wife helped the Respondent once. Equally, the Complainant recommended other people who were hired by the Respondent for a period. The Complainant carried no financial risks. He had no opportunity to make a profit, he was paid salary. The Complainant had no responsibility for investments and management.

The Complainant, in his direct evidence said that, as per the Code of Practice for Determining on Employment Status issued by the Revenue:

1.      The Complainant’s work was controlled by the Respondent. He would have arrived at the depot and the Respondent told him where to go to do deliveries.

2.      The Complainant supplied labour only.

3.      He was paid a fixed wage.

4.      He could not subcontract; he recommended some people the Respondent employed.

5.      The Complainant did not supply materials for the job.

6.      The Complainant did not provide equipment.

7.      The Complainant was not exposed to financial risk in carrying out the work.

8.      The Complainant had basic hours set.

The Complainant said that he was furnished with the Respondent’s diesel card. He was also obliged to furnish a medical certificate when out sick. A copy of a sick cert was exhibited at the hearing.

The determination of an individual’s employment status in the context of ascertaining whether or not that individual has standing to pursue claims under employment legislation is a mixed question of fact and law.

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 case law in relation to the employment status has developed over the years and a number of tests have been applied by the courts in order to determine the employment relationship.

In McAuliffe v Minister for Social Welfare [1994] ELR 239 Barr J. said it was not possible to devise any hard and fast rule as to what constitutes a contract of service. The Tribunals are required to look at totality of relationship between the parties and each case must be considered on its particular merits.  Accordingly, it is necessary to consider the evidence as presented under a series of tests as set out in the varying court cases that have dealt with this issue.

Mutuality of obligation

The mutuality of obligation has often been referred to as the irreducible minimum requirement which must be present before a contract of employment can be held to exist (Nethermere (St Neots) Limited v Gardiner [1984] ICR 612). In order for a contract of service to exist there must be mutual obligation on the employer to provide work for the employee and on the employee to perform work for the employer. There is an ongoing duty to provide work and one to accept work.

Based on the uncontested evidence of the Complainant, I find that under the arrangement that was in place between the parties, the Respondentundertook to provide the Complainant with work and that the Complainant undertook to personally perform that work in consideration of remuneration. 

Personal service and substitution

The Complainant’s uncontested evidence was that he provided personal service during the entire period of his engagement with the Respondent. While the Complainant’s wife performed some delivery service during the busy period, it appears that the Complainant’s wife did not substitute for the Complainant. Rather she was recruited as an additional driver. The Complainant was not allowed to send a substitute in the event that he was unable to do the work himself.

Control

The test was applied by the High Court in Minister for Industry & Commerce v Elizabeth Healy [1941] IR 545 and by the Supreme Court in Roche v Kelly and Co Ltd. [1969] IR 100 where Walsh J held that in master-servant relationship the master must have the right to tell servant what to do and how to do it, whether or not he exercises that right.  Traditionally the control test involved ascertaining the extent to which the employer could direct the operation and determine how it was to be done and when it was to be done. It has, however, diminished in significance over time. As was pointed out by Walsh J in Roche v Kelly it is the right to control the work rather than the actual exercising of that right that matters.

In Denny & Sons (Ireland) Ltd. v Minister for Social Welfare [1998] 1 IR 34, at page 50, Keane J. stated:

“It is, accordingly, clear that, while each case must be determined in the light of its particular facts and circumstances, in general a person will be regarded as providing his or her services under a contract of service and not as an independent contractor where he or she is performing those services for another person and not for himself or herself.

The degree of control exercised over how the work is to be performed, although a factor to be taken into account, is not decisive. Therefore, the question of control, though not determinative, is a factor to be taken into consideration in the analysis.”

Based on the uncontested evidence of the Complainant and the text messages exhibited at the adjudication hearing, I find that there are a number of facts that suggest that the Respondent exercised a high degree of control over the Complainant. The Respondent dictated the terms of engagement and set the daily rate of pay. The Complainant was obliged to deliver only on the routes determined in advance by the Respondent. The Respondent provided a vehicle, insurance, and the fuel card. The Complainant was required to be at work on the days scheduled by the Respondent. When out sick, the Complainant was required to provide a medical certificate. When he required time off, the Complainant was required to seek permission. The Complainant was in a relationship of subordination to the Respondent. He was reporting to Mr. Roche. His service was subject to termination.

On the basis of the above, I find that the Respondent exercised a significant degree of control over work done and the manner by which work was to be done by the Complainant and control of this nature is indicative of the existence of a contract of service.

Integration

In Stevenson, Jordan and Harrison Ltd. v McDonald and Evans [1952] 1 TLR 101, Lord Denning, at page 111, stated;

“One feature which seems to run through the instances is that, under a contract of service a man is employed as part of the business, whereas under a contract for services, his work, although done for the business is not integrated into it but is only accessory to it.”

In Re Sunday Tribune Limited [1984] IR 505, at page 507, Carroll J. described the integration test as follows:

“The test which emerges from the authorities seems to me, as Denning LJ said, whether on the one hand the employee is employed as part of the business and his work is an integral part of the business, or whether his work is not integrated into the business but is only accessory to it.”

In Autoclenz v Belcher [2011] UKSC 41, the UK Supreme Court considered whether car valeters were ‘workers’ for the purposes of the relevant UK legislation. It found that the integration test was satisfied on the basis that the valeters were fully integrated into the respondent’s business and that they had no other real source of work.

The core activity of the Respondent’s business relates to delivery of parcels via courier service, the very activity which the Complainant was engaged to perform. I accept that, considering the hours the Complainant worked for the Respondent every day, he was not in a position to take on additional work over and above that he performed for the Respondent.

I find that the Complainant was an integral part of a business, as opposed to carrying out work that, although done for the business, is peripheral or accessory to it.

Entrepreneurial Test

The test is to assist to determine whether a person is in business on his own account.   The Code of Practice on Determining Employment Statuscompiled by the Department of Social Protection, the Office of the Revenue Commissioners, and the Workplace Relations Commission provides that the test is:

“Whether and to what extent the person who has been engaged to carry out the work is doing so as a person in business on their own account, and has the ability to profit from their own efficiency/entrepreneurial skill or, conversely, runs the risk of suffering a financial loss.”

I find that the Complainant, on his uncontested evidence, worked exclusively for the Respondent. The Complainant was not in a position to profit from his efficiency or entrepreneurial skills or at risk of a financial loss due to a lack of same. He was paid a set daily rate on €130.

Having regard to the foregoing, I find that the Complainant was subject to considerable control by the Respondent in the manner in which he performed his work. The Complainant was required to give personal service in so far as he could not sub-contract the work. The work done by the Complainant was part of the Respondent’s core business. He was, therefore, an integral part of that business. I also note that the text messages exhibited show that the Respondent requested the Complainant’s details such as PPSN, theRespondentreferred to “wages” paid to the Complainant and the Respondent beingthe company the Complainant “work(s) for”.

I, therefore, conclude that the Complainant was engaged at all material times by the Respondent under a contract of service.

The Complainant submits that his employer has made an unlawful deduction from his wages in the sum of €650.

In his direct evidence, the Complainant said that he worked a week in advance, and that the salary for his final week at work which was not paid to him. He said that he does not recall any additional payment received after the termination of employment.

There was no appearance by, or on behalf of, the Respondent at the adjudication hearing.

In the written submission furnished on 27th May 2022, it was submitted on behalf of the Respondent that the Complainant had submitted various text message exchanges which show that at any point where he was previously owed money that he texted the Respondent demanding that same was paid. At no point has the Respondent ever received a demand for the money now being sought by the Complainant.

Examples of the text messages which have been sent by the Complainant previously if there was an error in the payment made to him include;

19th January 2021 text from the Complainant:

“please sort them. this week plus the money am. owed from. b4 xmas as well as you left me a day short last week can you get it sorted”

10th February 2021, the Complainant texted the Respondent the following;-

“Week in hand holidays an monies from before xmas sound plus 2 Saturdays I never got paid for”.

The Respondent made a transfer to the Complainant on 4th February 2021 of €650.00 and another transfer of €650.00 on 11th February 2021. Copies of banks statements showing these transfers were included in the Complainant’s own submission.

When the Complainant received the final payment from the Respondent on 11th February 2021 he replied by text message on 12th February 2021;

“Week in hand i worked 6 days only paid for 5? What about 12 days holiday pay an 2 Saturdays? What about monies I am. Owed from before xmas nearly 500€ can you sort this out this week

The Complainant by his own text message has admitted that he was paid for what he refers to as his "week in hand".

Wages are defined in Section 1 of the Act in relevant parts 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, 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: Provided however that the following payments shall not be regarded as wages for the purposes of this definition: (i) any payment in respect of expenses incurred by the employee in carrying out his employment, (ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office, (iii) any payment referable to the employee's redundancy, (iv) any payment to the employee otherwise than in his capacity as an employee, (v) any payment in kind or benefit in kind.”

Section 5 of the Act stipulates as follows:-

“5. Regulation of certain deductions made and payments received by employers

(1) An employer shall not make a deduction from the wages of an employee (or receive any 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 Complainant asserts that he worked on a “week in advance” basis. He asserted that he did not recall receiving any payment following the termination of his employment on or around 1st or 3rd February 2021.

I note that the bank statements, copies of which the Complainant exhibited at the adjudication hearing show a payment of €650 made to the Complainant on 4th February 2021 and a payment of €650 made to the Complainant on 11th February 2021. If, as suggested by the Complainant, he was working a week in advance, the final weekly salary would have been paid to him approximately one week after the termination of his employment i.e. on or around 8th or 10th February 2021.

I also note the text that the Complainant sent to the Respondent on 12th February 2021, which was furnished by both parties. In the message the Complainant states:

“Week in hand I worked 6 days only paid for 5?”

Having carefully considered the submissions and evidence before me, I find that the Complainant received monies due to him for 5 days that he worked during the final week of his employment with the Respondent. However, I find that the Complainant is owed €130 for the sixth day he worked that week.   

I declare this complaint to be partially well founded. I require the Respondent to pay the Complainant €130.

The Complainant submits that he often worked ten or eleven hours per day and did not receive any payment for additional hours or overtime pay. He was not paid for expenses incurred in carrying out his employment.

The Complainant submits that he would pick up his packages and load the Respondent’s van every morning in a depot in Annacotty. The run would usually be from Horse & Jockey via Littleton, Moycarky, Two-Mile Borris, Moyne, Urlingford and Holycross. The Complainant started most days between 7am and 7.30am and usually wouldn’t get home until 7pm or later. On numerous occasions he arrived home as late as 10pm.

The Complainant exhibited his records of days and hours worked, and payment received, copies of bank statements with payments received, and copies of text messages between the Complainant and Mr Roche setting out exchanges between the parties during normal and unsociable hours.

The Complainant, in his evidence, asserted that he normally started work at approximately 7am-7.30am and he would work on average 10-12 hours a day. The Complainant exhibited copies of text messages to Mr Roche which showed that, on occasions he would have worked until 10-11pm.

The Complainant submitted that he had never seen the records furnished by the Respondent, a “driver manifest stop report”. He said that the record was inaccurate as he would have started work at 7am-7.30am but the first stop would not be recorded until approximately 10am. He also noted that two drivers could have worked from one scanner or swap scanners between them.

There was no appearance by, or on behalf of, the Respondent at the adjudication hearing.

In the written submission furnished on 27th May 2021, the Respondent’s solicitor submitted as follows.

It is the Respondent’s case that the Complainant was at all times a self-employed contractor. It is noted that the Complainant is claiming time and a half for every hour worked over and above a 48 hour week. This is entirely disingenuous. In circumstances where the Complainant has exhibited an exchange of text messages which include demands for payment not once has the Complainant within the body of those text messages claimed that he was due overtime, time and half or any other "payment" that an employee would or should have an entitlement to assert.

Moreover, it is notable that the first reference to payslips coincides with the Complainant’s stated intention to apply for a mortgage. There is reference to payslips again, in connection with the Complainant's intention to apply for a loan. These messages are sent at the same time as the Complainant is submitting and being paid for invoiced work that the Complainant had hired his own employee to deliver which, of course as a self-employed contractor he was entitled to do.

The Complainant has submitted a table which details an estimate of the Complainant’s unpaid hours. The Complainant is alleging that from June 2020 until February 2021 that he worked 653 hours for which he has not been paid, for which he is seeking a nett sum €15,916.88. This combines with the monies the Complainant asserts he was paid for 1,600 hours presumably at a rate of €16.25 (€26,000.00) would mean a net payment for 34 weeks of €41,916.88. By this reckoning and presuming this is representative of the average hours worked by the driver that would break down at a net of €1,232 a week and €64,108 net a year. It is commonplace that this far exceeds the hourly rate / salary of a driver.

Without prejudice to the Respondent’s position that the Complainant is a self-employed contractor and not an employee, the Respondent notes that Complainant has asserted that every week he worked in excess of 48 hours. The Respondent furnished a driver manifest stop reports from 11th August 2020 to 30th September 2020, together with a detailed breakdown of the hours worked. The Respondent suggests that this breakdown clearly discredits the claims made by the Complainant.

The Complainant has submitted various text message exchanges which show that at any point where he was previously owed money that he texted the Respondent demanding that same was paid. At no point has the Respondent ever received a demand for the money now being sought by the Complainant.

The Complainant, by his own text message has admitted that he was paid for what he refers to as his "week in hand". The Complainant is a self-employed contractor and not entitled to holiday pay or public holiday pay.

Again, without prejudice to the position of the Respondent that the Complainant is a self-employed contractor, the Complainant has not put a date for the weeks, but has referred to them as week 1, week 2. The Respondent submits that the Complainant’s 34 weeks equates to 7.8 months. Any claim for pay which relates to a time outside of the statutory permitted six-month period should be statute barred and should not be entertained by the Adjudicator. The Complainant has not sought any "reasonable cause" to go beyond the six-month time limit.

Wages are defined in Section 1 of the Act in relevant parts 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, 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: Provided however that the following payments shall not be regarded as wages for the purposes of this definition: (i) any payment in respect of expenses incurred by the employee in carrying out his employment, (ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office, (iii) any payment referable to the employee's redundancy, (iv) any payment to the employee otherwise than in his capacity as an employee,

Section 5 of the Payment of Wages Act, 1991 stipulates as follows;-

5. Regulation of certain deductions made and payments received by employers

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

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment, unless–

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term, and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

(3)

(a) An employer shall not receive a payment from an employee in respect of a matter referred to in subsection (2) unless, if the payment were a deduction, it would comply with that subsection.

(b) Where an employer receives a payment in accordance with paragraph (a) he shall forthwith give a receipt for the payment to the employee.

(4) A term of a contract of employment or other agreement whereby goods or services are supplied to or provided for an employee by an employer in consideration of the making of a deduction by the employer from the wages of the employee or the making of a payment to the employer by the employee shall not be enforceable by the employer unless the supply or provision and the deduction or payment complies with subsection (2).

(5) Nothing in this section applies to–

(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of–

(I) any overpayment of wages, or

(II) any overpayment in respect of expenses incurred by the employee in carrying out his employment, made (for any reason) by the employer to the employee, and

(ii) the amount of the deduction or payment does not exceed the amount of the overpayment,

or

(b) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision, or

(c) a deduction made by an employer from the wages of an employee in pursuance of a requirement imposed on the employer by virtue of any statutory provision to deduct and pay to a public authority, being a Minister of the Government, the Revenue Commissioners or a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014), amounts determined by that authority as being due to it from the employee, if the deduction is made in accordance with the relevant determination of that authority, or

(d) a deduction made by an employer from the wages of an employee in pursuance of any arrangements—

(i) which are in accordance with a term of a contract made between the employer and the employee to whose inclusion in the contract the employee has given his prior consent in writing, or

(ii) to which the employee has otherwise given his prior consent in writing,

and under which the employer deducts and pays to a third person amounts, being amounts in relation to which he has received a notice in writing from that person stating that they are amounts due to him from the employee, if the deduction is made in accordance with the notice and the amount thereof is paid to the third person not later than the date on which it is required by the notice to be so paid, or

(e) a deduction made by an employer from the wages of an employee, or any payment received from an employee by his employer, where the employee has taken part in a strike or other industrial action and the deduction is made or the payment has been required by the employer on account of the employee's having taken part in that strike or other industrial action, or

(f) a deduction made by an employer from the wages of an employee with his prior consent in writing, or any payment received from an employee by an employer, where the purpose of the deduction or payment is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employee to the employer, or

(g) a deduction made by an employer from the wages of an employee where the purpose of the deduction is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employer to the court or tribunal or a third party out of the wages of the employee.

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

Section 41(8) of the Workplace Relations Act 2015 provides:

“(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The within claim was referred to the Director General of the WRC on 31st March 2021. Therefore, the cognisable period is from 1st October 2020 to 31st March 2021.

In Marek Balans v Tesco Ireland Limited [2020] IEHC 55 Finnegan J. considered Section 5 of the Act as follows:

36. The provisions of s. 5(6) of the Act of 1991 were considered by Finnegan P. in Dunnes Stores (Cornelscourt) Limited v. Lacey [2007] 1 I.R. 478. A Rights Commissioner had found in favour of the respondents holding that the cessation of service pay amounted to an unlawful deduction, which was upheld by the EAT. It was argued that the EAT should address the question of remuneration properly payable to an employee before considering the question of a deduction or whether a deduction was unlawful. Finnegan P. concluded at p. 482:-

“I am satisfied upon careful perusal of the documents relied upon by the respondents that the same cannot represent the agreement or an acknowledgement of the agreement contended for but rather contain a clear denial of the existence of any such agreement. No other evidence of an agreement was proffered. In these circumstances I am satisfied that the Employment Appeals Tribunal erred in law in failing to address the question of the remuneration properly payable to the respondents, such a determination being essential to the making by it of a determination. Insofar as a finding is implicit in the determination of the Employment Appeals Tribunal that the appellant agreed to pay to the respondents service pay and a long service increment, then such finding was made without evidence and indeed in the face of the evidence: I am satisfied that there has been no deduction of pay from the respondents within the terms of the Act of 1991 but rather their remuneration has been unilaterally increased by the appellant making a payment which recognises their long service in excess of that which was payable prior to the 18th September, 2002. In either case there has been an error or law. Accordingly I allow the appeal.”

The High Court made it clear that, when considering a complaint under the Act, the Adjudication Officer must first establish the wages which were properly payable to the employee before considering whether a deduction had been made. If it is established that a deduction within the meaning of the Act had been made, the Adjudication Officer would then consider whether that deduction was lawful.

It is for the Complainant to make out that the wages payable to him during the period encompassed by the claim are properly payable to him under the Act.

The Labour Court in Hannigans Butchers Limited v Jerko Anders Hresik Bernak DWT194 held as follows;-

This Court in Melbury Developments Ltd v. Arturs Valpeters EDA0917, in a case under the Employment Equality Acts, put it clearly in stating, ‘Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn’ and that ‘The Complainant must first establish facts from which discrimination may be inferred’. While these observations of the Court reference specific requirements under the relevant legislation, the sentiments are equally applicable to the exercise of rights under other Acts covering employment law. Indeed, it is a well-established general rule of evidence to quote Palles CB in Mahony v. Waterford, Limerick and Western Railway Co., (1900)2 IR 273, that ‘…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 within case, the Complainant asserts that he did not receive any payment for additional hours or overtime he had worked, and that he was not paid for expenses incurred in carrying out his employment.

In relation to the expenses incurred, the Complainant did not provide any details or specifics as to what expenses he was referring to. However, the Act, as quoted above, provides that any payment in respect of expenses incurred by the employee in carrying out his employment shall not be regarded as wages for the purposes of the definition of “wages” under the Act.

With regard to the alleged non-payment of overtime / additional hours, I find that, by the Complainant’s own evidence, which is corroborated by the Respondent’s written submission and the text messages exhibited by the Complainant at the hearing, an agreement was reached between the parties whereby the Complainant was to be paid €130 per day. The Complainant asserts that his understanding was that the payment was for 8 hour day. There was no evidence offered to suggest that the said payment was for a specific number of hours.

Having considered the submissions and all evidence adduced, I find that, apart from the Complainant’s own assertion, there was no evidence offered to me that would support the Complainant’s claim that the payment of €130 was in respect of 8 hours of work and any additional hours would attract an additional payment. 

There was, therefore, a contractual commitment in place for the rate of €130 to be paid. This was the rate properly payable to the Complainant by his employer. 

I declare this complaint to be not well founded.

The Complainant alleges that he was not paid his holiday pay, annual leave entitlement and/or days in lieu of time worked.

In his direct evidence, the Complainant said that he thought he would get his entitlement of 1.5 day of annual leave per month. He said that he asked for annual leave and he thought he took one day. On another occasion he was due to take time off but asked to come to work to “dig out” the Respondent.  

There was no appearance by, or on behalf of, the Respondent at the adjudication hearing.

In the written submission furnished on 27th May 2021, the Respondent’s solicitor submitted as follows.

The Respondent reiterates its position that the Complainant is a self-employed contractor and as such has no entitlement in relation to holiday pay, or public holiday pay under the Organisation of Working Time Act. No request for payment or claim in relation to alleged holidays due was made by the Complainant until after his contract had terminated with the Respondent. The Respondent argues that no prior claim was made as the Complainant was at all times aware that he was a self-employed person.

Section 19 of the Organisation of Working Time Acts stipulates as follows;-

Entitlement to annual leave

(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

The Complainant asserted that he did not receive annual leave as per the Act. The Respondent, in the written submission contended that the Complainant was not an employee and was, therefore not entitled to annual leave.

In light of my findings on the preliminary matter in this case, I find that the Complainant had an entitlement to annual leave in accordance with Section 19 of the Act.

The Complainant referred his complaint to the Director General of the WRC on 31st March 2021. The cognisable period, therefore, is from 1st October 2020 to 31st March 2021. I note that Section 2(1) of the Act stipulates that “leave year” means a year beginning on any 1st day of April”. Therefore, I may adjudicate on the full period of the Complainant’s employment with the Respondent i.e., from 22nd June 2020 to the date of termination (which for the purposes of the calculations is assumed to be 1st February 2021), some 7 months and 11 days. I find that the Complainant would have been entitled to 4 weeks of annual leave for a full year of employment. Therefore, his pro rata entitlement is approximately 12.27 days of annual leave.

I declare this complaint to be well founded. I direct the Respondent to pay the Complainant €1,595.10 in respect of the annual leave entitlement. In addition, I direct the Respondent to pay the Complainant €2,000 in compensation for breach of the Act.

The Complainant submits that he was not paid for public holidays.

In his direct evidence, the Complainant said that he thinks that the depot was closed on August and October 2020 public holidays. He said that he was paid cash for the first public holiday he worked for the Respondent.

There was no appearance by, or on behalf of, the Respondent at the adjudication hearing.

In the written submission furnished on 27th May 2021, the Respondent’s solicitor submitted as follows.

The Respondent reiterates its position that the Complainant is a self-employed contractor and as such has no entitlement in relation to holiday pay, or public holiday pay under the Organisation of Working Time Act. No request for payment or claim in relation to alleged holidays due was made by the Complainant until after his contract had terminated with the Respondent. The Respondent argues that no prior claim was made as the Complainant was at all times aware that he was a self-employed person.

Section 21 of the Organisation of Working Time Act, 1997 provides;-

21. Entitlement in respect of public holidays

(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day's pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

The Complainant asserted that he was not paid the amount he was due in respect of public holidays. He confirmed that he was paid cash for the first public holiday he had worked for the Respondent, i.e. 3rd August 2020 public holiday.

Pursuant to Section 41(6) of the Workplace Relations Act 2015, I have jurisdiction to investigate any complaint under the Organisation of Working Time Act 1997 for a period of six months from the date of the referral of complaint. This complaint was presented to the WRC on 31st March 2021 and, therefore, the cognisable period that may be investigated is 1st October 2020 to the date of termination. I find that there were four public holidays in the cognisable period, namely 26th October, 25th and 26th December 2020, and 1st January 2021.

I accept the Complainant’s evidence that he did not receive his public holiday entitlements, which is corroborated by the Respondent’s submission that the Complainant was not an employee and, therefore, had no entitlement to public holiday benefit.

I declare this complaint to be well founded. I direct the Respondent to pay the Complainant €520 in respect of the four public holidays. In addition, I direct the Respondent to pay the Complainant €500 in compensation for breach of the Act.

The Complainant submits that he did not receive his daily rest periods, he did not get his breaks, and weekly rest periods. The Complainant submits that he was required to work more than the maximum permitted number of hours.

The Complainant’s representative submits that the Respondent has failed to produce payslips or records of the hours worked by the Complainant and is in breach of section 25 of the Act.

Regarding the claim with respect to excessive hours, the Complainant’s representative cited Business Development Executive v Convenience Food Providers ADJ-0008654, upheld on appeal in Kepak Convenience Foods V O’Hara DWT1820. The Complainant’s representative also cited A Manager v A Property Management Company ADJ-00016120 regarding the requirement to retain records as per Section 25 of the Act.

The Complainant was not provided with rest periods pursuant to sections 11 to 15 of the Act and/or pursuant to regulations 5, 8, 10, 11 and 12 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012.

The Complainant’s representative cited A Gym Instructor v A Hotel and Leisure Centre ADJ-0000061.

In his direct evidence, the Complainant said that he was told to eat sandwiches while driving. He was not given any breaks only to stop to get a sandwich.

The Complainant further said that he could have worked late often until 8pm-9pm, the latest until 11.15pm and started work at 7am on the next day.

The Complainant said that he usually had one day off, on Sundays. Sometimes he would have been given another day off.

The Complainant said that the reports presented by the Respondent are not accurate as the drivers swapped the scanners or two drivers could have worked on one scanner.

There was no appearance by, or on behalf of, the Respondent at the adjudication hearing.

In the written submission furnished on 27th May 2021, the Respondent’s solicitor when addressing the Complainant’s claim under the Payment of Wages Act, 1991 furnished driver manifest stop reports for the period from 11th  August 2020 to 30th September 2020, together with a detailed breakdown of the hours worked. The Respondent asserted that this breakdown clearly discredits the claims made by the Complainant regarding the hours of work.

The Organisation of Working Time Act, 1997 in relevant parts provides as follows;-

11. Daily rest period

An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.

12. Rests and intervals at work

(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

13. Weekly rest periods

(1) In this section “daily rest period” means a rest period referred to in section 11.

(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.

(3) An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours and, subject to subsections (4) and (6)—

(a) if the rest periods so granted are consecutive, the time at which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and

(b) if the rest periods so granted are not consecutive, the time at which each of those periods commences shall be such that each of them is immediately preceded by a daily rest period.

(4) If considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature would justify the making of such a decision, an employer may decide that the time at which a rest period granted by him or her under subsection (2) or (3) shall commence shall be such that the rest period is not immediately preceded by a daily rest period.

(5) Save as may be otherwise provided in the employee's contract of employment—

(a) the rest period granted to an employee under subsection (2), or

(b) one of the rest periods granted to an employee under subsection (3), shall be a Sunday or, if the rest period is of more than 24 hours duration, shall include a Sunday.

(6) The requirement in subsection (2) or paragraph (a) or (b) of subsection (3) as to the time at which a rest period under this section shall commence shall not apply in any case where, by reason of a provision of this Act or an instrument or agreement under, or referred to in, this Act, the employee concerned is not entitled to a daily rest period in the circumstances concerned.

15. Weekly Working Hours

(1) An employer must not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed—

(a) 4 months, or

(b) 6 months—

(i) in the case of an employee employed in an activity referred to in paragraph 3, points (a) to (e) of Article 17 of the Council Directive, or

(ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection, or

(c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.

Burden of Proof

Section 25 of the Act provides for the keeping of records, it states: -

25.—(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

(2) The Minister may by regulations exempt from the application of subsection (1) any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.

(3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence.

(4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.

Accordingly, based on the provision at Section 25(4) of the Act, the onus of proving compliance with the Act rests with the Respondent.In Jakonis Antanas v Nolan Transport [2011] 22 E.L.R. 311 the Court held in relation to the application of that subsection as follows: -

“The burden on a respondent of proving compliance with the Act arises in proceedings in which a complaint of non-compliance is made. It is clear from s.27(2) of the Act that the jurisdiction of the Rights Commissioner is invoked by an aggrieved worker, or his or her trade union, by presenting a complaint to a Rights Commissioner that his or her employer has contravened a relevant provision of the Act in relation to him or her. The subsection goes on to provide that where a complaint is made the Rights Commissioner shall give the parties an opportunity to be heard and to present to the commissioner any evidence relevant to the complaint.

This suggests that the evidential burden is on the claimant to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Act. It seems to the Court that, as a matter of basic fairness, the claimant should be required to do so with sufficient particularity as to allow the respondent to know, in broad terms, the nature of the complaint and the case which they are expected to meet. As was pointed out by Lord Devlin in Bratty v Attorney General for Northern Ireland [1963] A.C. 386 an evidential burden is satisfied where the evidence adduced is sufficient to “suggest a reasonable possibility”

The respondent should then be called upon to put the records required by s.25(1) of the Act in evidence showing compliance with the relevant provision in issue. If records in the prescribed form are produced the legal burden will be on the claimant to satisfy the Rights Commissioner, or the Court on appeal, that the records ought not to be accepted as evidence of compliance. Thus the claimant will bear both the evidential and the legal burden of proving, on the balance of probabilities, that his or her rights under the Act were contravened in the manner alleged. If the claimant fails to discharge that burden he or she cannot succeed.

Where records in the prescribed form are not produced, and the claimant has satisfied the evidential burden which he or she bears, it will be for the respondent to establish on credible evidence that the relevant provision was complied with in relation to the claimant. The respondent will thus be required to carry the legal burden of proving, on the balance of probabilities, that the Act was not contravened in the manner alleged by the claimant. If the respondent fails to discharge that burden the claimant will succeed.”

This requires the Respondent to satisfy the Adjudication Officer that it is more probable than not that the Act was complied with in respect to the matters complained of by the Complainant. If the Respondent does not do so or if the probabilities are equal, the Complainant will succeed.

The Complainant gave direct evidence that he did not receive his rest breaks, daily and weekly rest periods, and that he worked in excess of the maximum permitted hours. The Complainant furnished text messages which corroborated his evidence that, on occasion he would have worked late in the evening and started early in the morning. The text messages also corroborate the Complainant’s evidence that the drivers would have swapped scanners or work using one scanner. Thus, the Respondent’s records cannot be relied upon.

Having carefully considered the submission and the evidence before me, I am satisfied that the Complainant has met the evidential burden of proof as the facts presented are sufficient to suggest a reasonable possibility that Section 11, 12,13 and 15 of the Act were contravened. In the absence of any evidence to the contrary, I find that the Respondent has failed to meet the legal burden of proving, on the balance of probabilities, that the Act was not contravened in the manner alleged by the Complainant.

I declare this complaint to be well founded. I direct the Respondent to pay the Complainant €5,000 in compensation for breaches of the Act.

The Complainant submits that he did not receive the appropriate payment in lieu of notice of termination of his employment.

The Complainant submits that he was let go on 1st or 3rd February 2021. He did not receive notice of termination, or a payment in lieu of notice.

The Complainant submits that, following the Respondent’s refusal to furnish his payslips, despite repeated requests, he reported the matter to the Revenue. The Complainant urgently required copies of payslips to secure a mortgage. On 1st February 2021, Ger Callaghan of the Respondent rang the Complainant and told him that he was fired for interfering in his business by reporting him to the Revenue. No notice or payment in lieu was paid.

The Complainant was informed that he would receive a letter of termination. No letter was received.

In his direct evidence, the Complainant said that he did not receive any additional payment in lieu of notice after his employment finished.

There was no appearance by, or on behalf of, the Respondent at the adjudication hearing.

The written submission furnished on 27th May 2021 did not contain a submission with respect to the claim regarding the payment in lieu of notice.

Section 1 of the Payment of Wages Act, 1991 defines “wages” as “any sums payable to the employee by the employer in connection with his employment, including— (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”.

The Complainant claims that he did not receive any prior notice or payment in lieu thereof on the termination of his employment.

I note that the Complainant did not have a written contract of employment and I have not been presented with any evidence to suggest that there was any contractual agreement between the parties in respect of notice entitlements upon the termination of his employment. The Complainant had been working for the Respondent for over 7 months and I am, therefore, satisfied that he did have the requisite service to qualify for statutory notice in accordance with the provisions of section 4 of the Minimum Notice and Terms of Employment Act 1973 which stipulates as follows;-

4. Minimum period of notice

(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

In the circumstances, I find that the notice entitlement claimed by the Complainant was properly payable to him within the meaning of section 5(6) of the Act.

Accordingly, I find the Complainant’s claim under the Payment of Wages Act 1991 is well founded and that the Respondent’s failure to pay him in lieu of his outstanding statutory notice entitlement upon the termination of his employment constitutes an unlawful deduction from his wages within the meaning of Section 5 of the Act.

I declare this complaint to be well founded. I direct the Respondent to pay the Complainant €650 (being the equivalent of one week’s pay) in respect of statutory notice entitlements.

The Complainant submits that he did not receive a statement in writing of his terms of employment.

In his direct evidence, the Complainant said that all he was told was that he would be paid €130 per day but was never given anything in writing.

There was no appearance by, or on behalf of, the Respondent at the adjudication hearing.

In the written submissions furnished on 27th May 2021, the Respondent’s solicitor submitted as follows.

The Respondent asserts that the Complainant is a self-employed contractor engaged in a contract for service, as opposed to a contract of service. At no point in the working relationship between the Complainant and the Respondent did the Complainant request from the Respondent any information under the Terms of Information Act. The first request for same, came after the Complainant had ceased working for the Respondent.

The case of Barry and others v the Minister for Agriculture and Food (Appeal number 86/2011) illustrates how difficult it can be to determine the issue of employment status. It is evident from the jurisprudence that there is no specific test for determining the status of an individual whose status is unclear.

If the Adjudicator in this case finds that the Complainant was employed under a contract of service, as opposed to a contract for service the Respondent would respectfully ask the Adjudicator to consider the decision in ADJ-00003238 A trainer vs A training provider wherethe Adjudicator upheld the complaint and found that the complaint works under a contract of service and as such was entitled to be given a statement of his terms of employment that complies with the requirements of the Terms of Employment (Information) Act 1994. The Adjudicator did not award compensation on the following basis;-

" In particular, there must be some room for a distinction to be drawn between the position of an employer on whom a clear obligation falls to provide a statutory statement, or notification of changes to it, and who has failed to do so, and the current respondent whose breach of the Act arises for the first time as a consequence of the finding in this case.

Therefore, in this case I do not consider there are ‘just and equitable’ grounds to make an award of compensation retrospectively and therefore I do not do so arising from my findings.”

This is a complaint pursuant to the Terms of Employment (Information) Act on the grounds that the Complainant was not provided with a statement in writing containing the particulars of the terms of the employee's employment listed in the Act within two months of the commencement of his employment (section 3). In the written submission furnished by the Respondent’s solicitor, it was accepted that no statement was provided to the Complainant. The Respondent asserted that the Complainant was a self-employed contractor and, therefore he was not entitled to a written statement.

It follows that section 3 of the Terms of Employment (Information) Act was not complied with. This is a subsisting breach as the statement was not provided at any time in this employment, up to and including the date of dismissal. The complaint was, therefore, lodged within six months of the date of contravention.

I note the Respondent’s reliance on ADJ-00003238. However, I find that this case can be distinguished on a fundamental point. In this case the complainant was, in fact, furnished with a contract that described his position as being ‘an independent contractor’ and stated that he ‘shall not be an employee’ of the respondent. The complainant sought to establish initially that he qualifies under the Act to be given that statement as ‘an employee’, which status was disputed by the respondent. No such contract was issued to the Complainant in the within case. Rather, it would appear, the Respondent relies on the lack of clarity regarding the arrangements between the parties to defend the claims referred to the WRC on the basis of the Complainant being an independent contractor.

I declare this complaint to be well founded. I direct the Respondent to pay the Complainant compensation of €2,600 (being the equivalent of four weeks’ pay) which I find just and equitable having regard to all the circumstances.

The Complainant submits that he did not receive a statement of his core terms in writing.

In his direct evidence, the Complainant said that all he was told was that he would be paid €130 per day. 

There was no appearance by, or on behalf of, the Respondent at the adjudication hearing.

In the written submissions furnished on 27th May 2021, the Respondent’s solicitor submitted as follows.

The Respondent asserts that the Complainant is a self-employed contractor engaged in a contract for service, as opposed to a contract of service. At no point in the working relationship between the Complainant and the Respondent did the Complainant request from the Respondent any information under the Terms of Information Act. The first request for same, came after the Complainant had ceased working for the Respondent.

The case of Barry and others v the Minister for Agriculture and Food (Appeal number 86/2011) illustrates how difficult it can be to determine the issue of employment status. It is evident from the jurisprudence that there is no specific test for determining the status of an individual whose status is unclear.

If the Adjudicator in this case finds that the claimant was employed in a contract of service, as opposed to a contract for service the Respondent would respectfully ask the Adjudicator to consider the decision in ADJ-00003238 A trainer vs A training provider wherethe Adjudicator upheld the complaint and found that the complaint works under a contract of service and as such was entitled to be given a statement of his terms of employment that complies with the requirements of the Terms of Employment (Information) Act 1994. The Adjudicator did not award compensation on the following basis;-

" In particular, there must be some room for a distinction to be drawn between the position of an employer on whom a clear obligation falls to provide a statutory statement, or notification of changes to it, and who has failed to do so, and the current respondent whose breach of the Act arises for the first time as a consequence of the finding in this case.

Therefore, in this case I do not consider there are ‘just and equitable’ grounds to make an award of compensation retrospectively and therefore I do not do so arising from my findings.”

This is a complaint pursuant to the Terms of Employment (Information) Act in respect of the failure to provide the Complainant with a statement of his core terms. Per section 3(1A) of the Act, an employee must be provided with the statement of their core terms of employment within five days of commencing the role. This covers such information as the name and address of the employer, rates of pay and hours of work. No statement of core terms was provided to the Complainant at any stage of his employment.

This is a subsisting breach up to the end of the employment. The complaint was, therefore, referred within six months of the date of contravention.

Taking account of the circumstances, and in line with my finding above, I find that the Respondent did not comply with the section 3(1A) of the Terms of Employment (Information) Act.

I declare this complaint to be well founded. I direct the Respondent to pay the Complainant compensation of €2,600 (being the equivalent of four weeks’ pay) which I find just and equitable having regard to all the circumstances.

The Complainant submits that his employer is not keeping statutory employment records.

The Complainant submits that, despite him seeking documentation which was never forthcoming, upon contacting Revenue, he was informed that he was never registered with his employer.

In his direct evidence, the Complainant confirmed that he drove a vehicle under 3.5 tonnes, a van with no tachograph. He had a category B driver’s licence.

There was no appearance by, or on behalf of, the Respondent at the adjudication hearing.

The written submission furnished on 27th May 2021 did not contain a submission with respect to the within claim.

The European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 were made for the purposes of giving effect to Directive 2002/15/EC of the European Parliament and of the Council of 11th March 2002.

The scope of the Regulations is set out in Regulation 3 which provides that:

“3. these regulations apply to - a) mobile workers who are employed by or who do work for one or more undertakings established in a member State, and (b) self-employed drivers Participating in road transport activities to which either the Council Regulations or the AETR applies.”

The Regulations permit mobile workers to refer complaints to the Workplace Relations Commission in relation to a contravention of a provision or requirement set out in the legislation. This avenue for redress is only available to mobile workers. 

The scope of the Directive covers only mobile workers employed by transport undertakings established in a Member State participating in mobile road transport activities covered by Regulation (EEC) No. 3820/85 as amended by Regulation 561/2006, or by the European Agreement concerning the work of crews of vehicles engaged in international road transport.

The scope of Directive 2002/15 is limited to vehicles used for the carriage of goods where the maximum permissible weight of the vehicle, including any trailer or semi-trailer, is 3.5 tonnes or more covered by the European Agreement Concerning the Work of Crews Engaged in International Road Transport (“AETR”). It also applies to passenger-carrying vehicles that are built or adapted to carry more than nine people, including the driver.

The Complainant’s evidence at the adjudication hearing was that he held a category B licence, he drove a vehicle under 3.5 tonnes, which was not fitted with a tachograph.

I am satisfied from the evidence adduced that the Complainant is not covered by Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012.

I declare this complaint to be not well founded.

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