ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00043510

Parties:

Complaint:

Date of Adjudication Hearing:  30/08/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015  following the referral of the complaint  to me by the Director General, I inquired into the complaint  and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complaint is that the Respondent failed to pay to the Complainant €9,700 as per his contract, for the time period 24/10/2022 to 16/12/2022.

Summary of Complainant’s Case:

The Complainant stated that he was contracted to supply IT services on software development for the Respondent.  He submitted a document “Independent Contractor Agreement” dated 13/09/2022.  He also submitted invoices he supplied to the Respondent and stated that the second invoice he submitted remained unpaid.  He submitted further documents showing that the Respondent had proposed to set him up in fulltime employment in late November 2022.  He also submitted the emails containing the disputes between him and the Respondent over work quality and payments.

Summary of Respondent’s Case:

The Respondent stated that the WRC has no jurisdiction in this case.  The Complainant was engaged as an independent contractor and was not a direct employee of the company.  He argues that the correct jurisdiction is in the civil courts.  On the substantive issues, the company could not pay the Complainant for services not properly delivered.

Findings and Conclusions:

The Respondent has argued that the WRC has no jurisdiction to hear this complaint as the Complainant, having been engaged on an independent contractor agreement, was not an employee.

The applicable law

Section 41 of the Workplace Relations Act 2015 provides that an employee may present a complaint that an employer has contravened a provision of the relevant act.  In this case,

Section 5 of the Act provides:

5.—(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.

Section 5 (6) provides:

(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.

Definition of employee

Section 1 of the Act provides:

“employee” means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment..

Definition of employer

“employer”, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment..

It is common case in this instant claim, that the Complainant worked for the Respondent under an independent contract for service and not a contract of employment.  I note the Respondent had intended to change his status to that of a fulltime employee.  However, for the duration of the time period under consideration in this case, the Complainant was clearly a contractor and he himself agreed he was a contractor.

There is no jurisdiction to adjudicate in this case and I therefore find the complaint to be not well founded. 

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

There is no jurisdiction to adjudicate in this case and I therefore find the complaint to be not well founded. 

Dated:   25th September 2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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