Complainant

Respondent

Parties

Godwin  Ndemera

Elite Accounts & Tax Services Limited

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

No Appearance

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-00051618-001

10/07/2022

The Complainant’s engagement with the Respondent began on 20th May 2005. The Complainant was engaged as a bookkeeper and was remunerated at a rate of €15.00 per hour. The Complainant’s tenure was extremely brief, with the engagement being terminated by the Respondent on 31st June 2022.

On 10th July 2022 the Complainant referred the present complaint to the Commission. Herein he alleged that he did not receive any form of payment for the work he completed in June 2022, a total of €2,402.00. By response, the Respondent raised various jurisdictional and substantive defenses to this allegation. Firstly, they submitted that the legal entity impleaded by the Complainant did not exist, with the correct legal entity being “Elite Accounts & Tax Services Limited”. In addition to the foregoing, it was submitted that the Complainant was never in fact employed by the Respondent and was in fact engaged as a sub-contractor. Finally, the Respondent submitted that the complaint was insufficiently precise, and that they were not in a position to respond to the same. The Respondent submitted that the proposed hearing on the remote platform would be insufficient to consider such matters and requested to two-week adjournment to allow his solicitor to prepare affidavits in this regard. In the moments prior to the hearing, the Respondent repeated this request and thereafter, did not attend the hearing as scheduled.

In this regard, I note that that the Respondent received notification of the time, date and venue of the hearing on 2nd February 2022. The first adjournment application on his behalf arose on 8th Match 2022, some five days prior to the hearing. In this regard, it is apparent that each of the issues raised by the Respondent were within their knowledge from the receipt of the notice of hearing, if not the complaint itself. Notwithstanding the same, it is apparent that the complaint itself relates to the alleged non-payment of wages. The full amount of the alleged non-payment and date on which the same should have been received was set out on the complaint form. In this regard the subject matter of the complaint was clearly set out by the Complainant prior to the hearing and the Respondent was in a position to answer the same. Regarding the hearing itself, the same was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. Such a method a hearing such matters is now well-established and commonplace. Having regard to the foregoing, I did not grant the Respondent’s application for an adjournment, and the matter proceeded in their absence.

Regarding the legal title of the Respondent, Section 39(2) of the Organisation of Working Time Act provides that,

“A decision (by whatever name called) of a relevant authority under this Act or an enactment referred to in the Table to this subsection that does not state correctly the name of the employer concerned or any other material particular may, on application being made in that behalf to the authority by any party concerned, be amended by the authority so as to state correctly the name of the employer concerned or the other material particular.”

In this regard, the impleaded Act is listed in the table referred to in the provision.

During the hearing, the Complaint made an application to amend the title of the Respondent to “Elite Accounts & Tax Services Ltd”. In the absence of any objection on the part of the Respondent this application was granted.

The Complainant attended the hearing as scheduled and gave evidence in support of this own application. This evidence was given under oath, with the Adjudicator making various enquiries on foot of the same.

In answer to the preliminary objection raised by the Respondent, the Complainant submitted that he was engaged as an employee by the Respondent. He stated that he applied for the role by means of the third-party website. On receipt of his application, the Managing Partner of the Respondent met with him and agreed that he would commence employment on 20th May 2022. At this point, the Complainant understood that the relationship between the parties was to be one of employment, with the Respondent to provide a contract in relation to the same in early course.

During his engagement, the Complainant attended the Respondent’s office each day. The Complainant was provided with a key to the office as well as the code to the shared area of the office. The Complainant completed his work using the Respondent’s equipment, with the product of his work being posted on an internal server for the Respondent’s review.

At the outset of the Complainant’s employment, he had difficulty being set up on the Respondent’s payroll systems due to issues with his PPS number. When this issue was resolved, the Complainant approached the Managing Director of the Respondent in relation to his outstanding payment. At this point he was informed that he had made a series of significant errors and omissions on the files he was working on. He was informed that on foot of the same, he would not receive payment for the work completed. At this point, the Complainant was owed the sum of €2,402.00 in wages.

By submission, the Complainant denied making the errors attributed to him by the Respondent. He stated that his work product was continually reviewed, with no issue being raised in relation to the same until such a time as he sought payment. He stated that the requested this payment from the Respondent, and following the failure to discharge the same, he was forced to refer the present complaint.

The Respondent did not attend the hearing as scheduled. In circumstances whereby they were clearly informed of the date, time and venue of the same, the matter proceeded in their absence.

By correspondence, the Respondent submitted that the Complainant was not their employee, and as a consequence of the same, he did not enjoy standing to pursue the present complaint. By response, the Complainant gave direct evidence as to his employment status. He stated that at all times it was his understanding that he was to be an employee of the Respondent. He stated that he attended the Respondent’s office, used the Respondent’s equipment, provided services to the Respondent’s clients and took direction from management from the Respondent in relation to the same.

In the matter of Barry & Ors v Minister for Agriculture [2008] IEHC 216, Edwards J. held that the initial starting point for examining such a dispute, is to determine the existence or otherwise of a “mutuality of obligation”. In particular, Edwards J held that,

“The requirement of mutuality of obligation is the requirement that there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer. If such mutuality is not present, then either there is no contract at all or whatever contract there is must be a contract for services or something else, but not a contract of service.”

Regarding the instant case, the uncontested evidence of the Complainant was that throughout his engagement he was assigned work by the Respondent. From the evidence adduced, it is apparent that the Complainant was entitled to refuse to complete such work without significant consequence. Having regard to the foregoing, I find that a mutuality of obligation exited between the parties.

In the matter of Emo Oil Ltd v Sun Alliance and London Insurance plc [2009] IESC 2 the Supreme Court approved the following passage,

“The basic rules of construction which the court must apply in interpreting the documents which contain the parties’ agreements are not in dispute. The Court’s task is to ascertain the intention of the parties, and the intention must be ascertained from the language they have used, considered in the light of the surrounding circumstances and the object of the contract. Moreover, in attempting to ascertain the presumed intention of the parties the Court should adopt an objective, rather than subjective approach and should consider what would have been the intention of reasonable persons in the positions of the parties”.

Likewise, in the matter of Chris Lavan V Liberty Insurance Ltd [UD 1575/2014], the Employment Appeal Tribunal held that,

“Whether a worker is an employee or self-employed depends on a large number of factors. The Tribunal wishes to stress that the issue is not determined by adding up the number of factors pointing towards employment and comparing that result with the number of factors pointing towards self-employment. It is a matter of the overall effect which is not necessarily the same as the sum total of all individual details. Not all details are of equal weight or importance in any given situation…..When the detailed facts have been established the right approach is to stand back, and look at the picture as a whole.….If the evidence is evenly balanced, the intention of the parties may then decide the issue…”

In the matter of Camp Hill Communities of Ireland and Elke Williams UDD2155, the Labour Court found that the provision of accommodation (in addition to other benefits) as compensation for services rendered was indicative of an employment relationship. In so finding, the Court established a mutuality of obligation and went on to examine the extent of the Respondent’s control over the Complainant, and the Complainant’s integration into the Respondent’s activities.

Finally, 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”.

In this regard, the Complainant’s uncontested evidence was that he answered an advertisement posted by the Respondent on an employment website. Thereafter, he attended an interview and commenced a role that he understood to be one of employment, with his contemporaneous understanding being that he would receive a contract of employment in due course.

Thereafter, the Complainant attended the Respondent’s offices on a daily basis. His evidence was that whilst there he took direction from the Respondent regarding the services he was to provide to the firm’s clients. The Complainant used the Respondent’s computer system to complete and record this work, which was later reviewed by the managing partner of the firm.

In the alternative, the written submissions of the Respondent firmly denied that the Complainant was an employee. They submitted that no authorisation was provided to allow the Complainant to be registered as an employee. In this regard it was submitted that Complainant was engaged on a two-month trial period. The view of the Respondent is that the Complainant failed this trial and consequently did not become their employee. They further submitted that the Complainant was a sub-contractor engaged for a specific purpose.

Having regard to the foregoing, it is apparent that the intention of the parties at the outset was to create a contract of employment, albeit one that was subject a two-month trial period. During this time, the uncontested evidence of the Complainant was that he fully integrated into the Respondent organisation, completed work for their benefit, under their direction and subject to their review. Having regard to the foregoing, I find that the Complainant was engaged by the Respondent under a contract of employment, and consequently the substantive matter falls to be considered.

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…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”.

In the matter of Marek Balans v Tesco Ireland Ltd [2019 No. 83 MCA], McGrath J stated that when considering complaints under the present Act,

“Central to the Court’s analysis must be the concepts of wages properly payable and the circumstances in which if there is a deficiency in respect of those such payments”.

The Complainant position in relation to the substantive matter is relatively simple. He stated that he was employed under a verbal contract of employment. He stated that his agreed rate of pay was €15 per hour for an eight hour day, five days a week. He submitted that towards the end of his employment the Respondent failed to discharge these wages on the basis of an alleged deficiency in his work product. In this regard, the complaint form as submitted calculated the sum unpaid wages at €2,402.00.

In denying this allegation, the Respondent submitted that the Complainant was not an employee. As a consequence of the same, his wages were not properly payable for the purposes of the present Act.

Having regard to the findings in the preliminary point, I find that the Complainant was engaged under a contract of employment. As a consequence of the same, and in consideration of the Complainant’s uncontested evidence in this regard, I find that the Complainant was subjected to an unauthorised deduction of €2,402.00 to his wages.  In this regard, I find that the complaint is well-founded.

I find that the complaint is well-founded and consequently the Complainant’s application succeeds. Regarding redress, Section 6(2) of the Act (as amended) empowers me to award such redress as deemed reasonable in the circumstances, so long as the same does not exceed the total amount of wages owed.

Having regard to the totality of the evidence presented, I award the Complainant the sum of €2,402.00 in compensation. This award should be subject to all usual deductions as income.

Wages, Income, Employee, Integration, Control