Complainant

Respondent

Parties

Geraldine  Hamill

Mht Lighting Ltd.

Representatives

John Dunne McInnes Dunne Solicitors

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-00049325-001

24/03/2022

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

CA-00049325-002

24/03/2022

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

CA-00049325-003

24/03/2022

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

CA-00049325-004

24/03/2022

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

CA-00049325-005

24/03/2022

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

CA-00049325-006

24/03/2022

A hearing was held into this matter on the 17th of January 2023. Both sides requested that the matter be heard in private but could present no exceptional grounds justifying such a direction. As such the matter was heard in public.

The Complainant Geraldine Hamill attended represented by her solicitor John Dunne. The Complainant alleges that the Respondent made a number of unlawful deductions from her salary and that she did not receive her entitlements under the Organisation of Working Time Act.

The Respondent’s Managing Director David Tennyson attended alongside his colleague Deirdre Connolly. The Respondent alleges that the Complainant was never and employee and all deductions related to her hours of work as a self employed consultant.

The Complainant was contacted by the Respondent sometime in November 2020. She met with Mr Tennyson and his father who were planning on expanding their US based business into Ireland with Mr Tennyson taking the lead on this. The Complainant was asked to assist in setting up the business in Ireland. The Complainant was finishing up a University course at the time but was asked to come on board as a self-employed consultant until this was completed, working approximately one day a week from the start of 2021, the Complainant was paid by the US entity for this period.

On 31st of May 2021 the Complainant began working full time with the Respondent as planned.

The central issue to this dispute concerns whether from the 31st of May the Complainant was an employee of the Respondent or did she continue as a self-employed consultant.

The Complainant’s solicitor outlined their submission at the hearing.

The Complainant was formally offered the position of Business Development in a letter dated the 9th of June 2021. This was a salaried position at management level.  

Without prejudice to their substantive case that the Complainant was offered and accepted a contract of service with the Respondent employment status is a matter of law not rather than what the parties agreed to.  The Respondent satisfied the mutuality of obligation and control tests. She worked exclusively for the Respondent and was closely supervised in her work.

The Complainant seeks to rely on the precedent set down by the Courts in Henry Denny and Sons v Minister of Social Welfare and Minister for Agriculture v Barry.

The Complainant, Geraldine Hamill, gave evidence under oath.

She outlined that in November 2020 she met with Mr Tennyson and his father and they shook hands on her taking up the position of business director with a salary of €100,000. The Complainant couldn’t take up the job immediately because she was undertaking studies. For the first months of 2021 the Complainant worked one to two days a week and received payment from the American company every Friday. Her payment was a pro rata of the agreed annual salary.

The Complainant has confirmed that she considered this first phase of work to be self-employed. The Complainant had her own limited company established and was paid through that.

As planned the Complainant took up the role of business director on the 31st of  May 2021. Mr Tennyson gave her a letter of offer approximately a week later in his office, the Complainant signed this and he put it back into his desk. She never received a contract.  

To facilitate the Respondent while they got their payroll and other affairs in order the Complainant continued to be paid through her own company. She stresses she took on no other work at this time and was working full time for the Respondent. In June 2021 the Complainant was again paid by the US entity. From July the Complainant was being paid by the Respondent directly so was required to produce invoices so that they were VAT complaint.

Mr Tennyson requested the Complainant’s private bank details and these were sent on the 12th of August. Up until August there had been a hybrid working arrangement, from August onwards Mr Tennyson wanted her in the office full time.

The Complainant was supplied with a company computer and email address by the Respondent. Work was always closely supervised by Mr Tennyson.

Ultimately the relationship deteriorated and she was let go by the Respondent on the 20th of October 2021.

The Complainant submits that there were a number of unlawful deductions from her pay from her last two pay periods. The reasons given for these were that the Complainant had taken a number of sick leave days, days off for bank holidays and days where the Complainant could not work because of computer problems. The Complainant submits that she worked through any illness and computer problems and that she was entitled to the bank holiday.

Under cross examination the Complainant outlined that she attended a family wedding in September.

In response to Mr Tennyson’s evidence the Complainant clarified that she had received a payment for work completed before she started working for the Respondent some time while working for the Respondent. The Complainant did not take on any other work at that time and did not think she was allowed.

David Tennyson and Deirdre Connolly gave evidence on behalf of the Respondent under oath.

David Tennyson fundamentally disputes that the Complainant was an employee. He agrees that he offered the Complainant employment and would have preferred she took up the option however the Complainant wanted to remain a self employed consultant.

The Complainant was offered a letter setting out a employment relationship but did not sign or return it.

There was no reason for the Complainant to submit invoices other than because she was self-employed.  The Complainant would have been fully aware there were a number of PAYE employees working for the Respondent and that their payroll would have had to have been fully set up.

Mr Tennyson was experienced with payroll software and suggests it’s not exceptionally hard to set up these systems.

The Complainant was brought in to help develop new clients and grow the business. Ultimately she did not prove to be a good fit but at that point the Respondent offered her a partner distribution agreement as an alternative to her consultancy role.

Ms Deirdre Connolly began working with the Respondent in 2020 when the company set up in Ireland. Like the Complainant she was a contracted by the US company to help set up the Irish Company.

The Respondent registered for PAYE and PRSI in January 2021.

Ms Connolly spoke to the Complainant a number of times regarding her employment status. The Complainant had company in place and wanted to keep it in place in case the Respondent’s efforts to grow in Ireland did not work out. It  worked in her favour to continue as a contractor.

When the Complainant moved from being a consultant paid by the US company to a consultant paid by the Irish company she needed to submit VAT compliant invoices.

The Respondent evidence then dealt with a number of instances which clearly relate to the parties falling out. This included a dispute as to whether a laptop could be given to IT.

Following the parities parting ways they discovered an invoice to the Complainant’s company from another company on the returned laptop.  This demonstrates that the Complainant was free to do take other work and she did.

Ms Connolly gave evidence that one at least two occasions she tried to get in touch with the Complainant during work hours, but the Complainant was not working.

Mr Tennyson provided evidence to the effect that he didn’t closely supervise the Complainant’s work and in fact disputes arose as she tried to supervise his, specifically regarding tender applications.

Generally the Complainant’s work wasn’t amenable to supervision as she was bringing in leads.

Mr Tennyson thought that the Complainant becoming an employee was the ultimate direction. She didn’t want to be employed. She wasn’t happy until the Irish entity was set up.

I asked Ms Connolly whether the Complainant was performing the role as outlined in the letter of 9th of June. She confirmed that she was but as a external contractor rather than an employee.

There is significant dispute between the parties as to the Complainant’s intentions regarding her employment status.

The following is agreed:

·       The Complainant first entered into discussions with the Respondent and the US entity in late 2020.

·       A salary of €100,000 per annum was agreed between the parties.

·       The Complainant could not immediately take up her role so instead worked as a self-employed consultant on a part time basis until 31st May 2021. The payment for this was a pro-rata of the €100,000.

·       The Complainant took up a full time role on the 31st of May 2021 is outlined in the letter of 9th of June 2021. Both parties agree the Complainant worked this role but dispute her employment status.

The Complainant’s solicitor is correct that an employment contract arises as a matter of law and does not necessarily relate to the parties agreement or even intention. Such matters are still relevant in deciding whether there is evidence of an employment relationship, particularly in cases like this which concerns a well-established professional carrying out services relating to their own expertise and who has a history of self-employment.

Nonetheless the oral evidence before me is entirely at odds on these issues and I cannot see any reason to prefer the conflicting evidence of any one of the three witnesses.

This leaves me the letter of the 9th of June 2021. While there is a dispute as to whether it was signed there is no dispute as to whether the Complainant performed the role as set out in the letter from the 31st of May to the 4th of October 2021.  

This letter is clear that the role of Director of Business Development is full time and that it is fully integrated into the Respondent management structure. The sales team and outside reps will report to the Director of Business Development who in turn reports to the Managing Director.

It is important to note that there is no other document available to me detailing the role that the Complainant had with the Respondent or the relationship between the parties.

Having regard to all the matters outlined in the hearing and submissions and in particular the letter of the 9th of June 2021, on the balance of probabilities, I am satisfied the Complainant was an employee of the Respondent.

As such I am satisfied that I have jurisdiction to consider the Complainant’s complaints under the Payment of Wages Act and the Organisation of Working Time Act.  

CA-00049325-001 (Payment of Wages Act)

This complaint concerned the deductions from the Complainants September 2021 wages. One of the dates relate to a deduction of a bank holiday in August. The total value of the deductions was €3278 (not inclusive of the VAT contained on the invoice).

I note the Respondent’s evidence that some of these deductions relate to days the Complainant did not work either due to illness or a broken laptop. This is disputed by the Complainant.

The Respondent has provided no working time records to back up their claim that the deduction was justified.

I can find no evidence of agreement between the parties or any other reason to consider that these deductions were lawful. I am of the view that the deduction of €3278 is in contravention of the act

CA-00049325-002 (Payment of Wages Act)

This complaint concerned the deductions from the Complainants October 2021 wages. One of the dates relate to a deduction of a bank holiday in August. The total value of the deductions was €1092 (not inclusive of the VAT contained on the invoice0.

I note the Respondent’s evidence that some of these deductions relate to days the Complainant did not work either due to illness or a broken laptop. This is disputed by the Complainant . The Respondent has provided no working time records to back up their claim that the deduction was justified. Under evidence the Complainant accepted that she took a day of to attend a family wedding during this period.

I can find no evidence of agreement between the parties or any other reason to consider the deductions as lawful. I am of the view that the deduction of €1092 is in contravention of the act

CA-00049325-003 (Organisation of Working Time Act)

The Complainant has alleged to have accrued 8 days annual leave during her time with the Respondent but was not paid for this on termination as required by Section 23 of the Act. The Complainant’s places a value of €3233 on this failure of the Respondent to pay the Complainant’s leave. The Respondent is of the view that they were not required to make this payment the Complainant was not an employee, a matter I have dealt with above.

I note the Complainant’s evidence that she did in fact take one day’s annual leave.

Section 27 of the Organisation of Working Time Act provides that I may require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.

On review of the all the circumstances I am of the view that compensation of €3500 for the breach of the Complainant’s rights is just and equitable.

CA-00049325-004 (Organisation of Working Time Act)

This complaint relates to the failure of the Respondent to pay public holidays. I note that the value of these public holidays are included in the Complainant’s Payment of Wages claims.

In the circumstances and with particular regard to the limited nature of the breach, two public holidays, I do not think that additional compensation is warranted.

As such while the complaint is well founded, I am of the view that a nil award is appropriate.

CA-00049325-005 (Terms of Employment Information Act)

It is common case that the Complainant never received a statement of particulars as required by Section 3 of the Terms of Employment Information Act.

The letter of the 9th of June 2021 was received by the Complainant and set out a number of the key terms required by Section 3.  However, though the letter was ultimately key is determining that the Complainant was an employee I do not think it would be appropriate to suggest it can be considered to have even partially satisfied the conditions outlined in Section 3. This is because the Respondent has asserted that the letter was not something that could be relied upon as they allege the Complainant did not return and sign it.

Section 7 of the act provides that I can order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

In the circumstances I am of the view that the Complainant should receive compensation of €3,835.

CA-00049325-006 (Terms of Employment Information Act)

The Employment (Miscellaneous Provisions) Act 2018 amended Section 3 to include Sub-Section 1A which requires an employer to give an employee a statement in of certain particulars within 5 days of the employee starting employment. This complaint is well founded.

As section 3.1.A is contained in Section 3 and I have already determined an award for Section 3 I am of the view that a further award would not just and equitable with regard all to the circumstances.

CA-00049325-001

This complaint is well founded. I direct the Respondent to pay the Complainant €3278.

CA-00049325-002

This complaint is well founded.  I direct the Respondent to pay the Complainant €1092.

CA-00049325-003

This complaint is well founded. I direct the Respondent pay the Complainant €3500 in compensation for the breach of her statutory rights.

CA-00049325-004

This complaint is well founded. I make no award for compensation.

CA-00049325-005

The complaint is well founded. I direct the Respondent pay the Complainant €3835 in compensation for the breach of her statutory rights.

CA-00049325-006

This complaint is well founded. I make no award for compensation.

Contract of Service