Complainant

Respondent

Parties

Anderson  Roncatti Marques

Its 2 Eat, Bakery And Pastries

Representatives

 Peninsula Business Services

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-00055597-001

19/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00055597-003

19/03/2023

The complainant says that he was employed by the respondent for seven months.  He submitted two complaints one under the Payment of Wages act which had three elements.

The first related to an additional hour he says he worked on his shift for which he was not paid.

His starting time and finishing time was due to be 12 midday but he generally worked for a further hour. He also complains that he received no premium payment in respect of Sunday working. The third element of this complaint is that he says he received no annual leave In the period.

His second complaint is that he says that he was not paid notice on the termination of his employment.

In a preliminary response, the respondent disputes that he was ever an employee and accordingly says that none of the complaints are within jurisdiction.

Accordingly, this was addressed as a preliminary issue.

The complainant give evidence on oath. (The interpreter in attendance also made the relevant affirmation).

The complainant says that he worked for five hours every day primarily as a driver, but also undertook other tasks.

He referred in his evidence to having a roster, but he was not able to produce any evidence of one.

He was asked to describe the process by which he was recruited but again he could offer no evidence other than that he was asked by the respondent to undertake work for him. He said there were witnesses as to his pattern of attendance, but none was present to give evidence.

He did not have a contract of employment, nor did he receive any payslips but did not think to raise this at any stage with the respondent although he was concerned that he was paid only by cash and not by electronic funds transfer. He was paid €13.00 per hour for twenty-four hours per week.

He says that in his final conversation with the respondent he was told that he was being ‘fired’.

The owner of the respondent business Mr Higor Martins’ give evidence on oath. He said that he met the complainant through motorbiking and they became personal friends.

He accepts that he asked the complainant to undertake occasional tasks such as doing errands or deliveries, but he was not on a roster and was never an employee. He did invite the complainant to become an employee in January 2023, but he says that the complainant declined.

He has other employees who are fully compliant with employment and revenue regulations, and it would make no sense for him to depart from that in respect of the complainant. He is supported by Peninsula Business Services and takes professional advice on these matters.

Eventually he told the complainant that he did not want him on his premises even as a customer as a result of complaints from other employees about disrespectful conduct on the part of the complainant.

If he had wished to terminate a contract of employment, he would not have done so in the manner alleged by the complainant and would have taken advice but that was not in issue because the complainant had never been an employee.

As can be seen there is a stark conflict in the evidence given, in both cases, on oath. Where the precise truth lies is difficult to say in the absence of supporting evidence of any sort by either party.

The burden of proof falls on a complainant in such cases. He arrived at the hearing apparently unaware of that requirement; he brought no supporting documentation of any sort; either the original WRC complaint document or anything else related to the hearing or to his employment, and while he referred to witnesses being in a position to support his case, he did not bring any. 

On the one hand the complainant says he was contracted to work for twenty-four hours a week for €13 per hour, and in fact worked an extra hour a day, and for an initial period also worked on Sundays, without any premium payment.

On the other the respondent sought to diminish the extent of the commitment by referring vaguely to occasional tasks he asked the complainant to carry out and for which he paid on each occasion.

He said the complainant ‘hung around’ the business (which included a coffee shop.) They were both Brazilian and obviously shared a common language.

This evidence was not entirely convincing.

That said, in the final submissions on his behalf by his representative, it was stated that all other staff are fully and properly contracted, are given payslips and she wondered why the complainant would be such an exception. Her organisation provides HR and employment law advice to the respondent.

The complainant for his part simply said that he was relying on his word in respect of the complaints.

I make no finding on that except to say that a decision must be based on whether a complainant has established, on the balance of probability but more importantly on the basis of some evidence that his complaints are well founded or within jurisdiction.

Where such a stark conflict arises on the facts of a case it is not open to an adjudicator to simply ‘plump’ for one side or the other on the basis of some speculation as to who is telling the truth; there must be evidence.

For those reasons I find on the preliminary issue that the complainant has not established that he was employed on a contract of employment, and he does not therefore have the legal standing to pursue these complaints.

Accordingly, for that reason the complaints are not well founded.

For the reasons set out above Complaints CA-00055597-001 and 003 are not well-founded.

Employment status.