Complainant

Respondent

Parties

Ismael Diarra

We Are Defiant

Representatives

Self-represented

Did not attend the hearing

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-00057431-001

30/06/2023

The respondent produces music videos and corporate films and has a wedding video business.  The complainant commenced working for them on a part-time basis as a wedding videographer and editor.  He reported to the joint managing directors (MDs) Barry Gibbons and Oleg Rudkovskij.  He earned €250 a week and he said that he had discussed with the MDs the possibility that he would become full-time at some stage in the future.

The complainant said that the MDs told him that they would organise a company vehicle for him to travel to do the wedding videos.  For the first few months however, he said that one of the MDs drove him to his assignments, or he hired a car and submitted the cost as an expense.

After a few months, the complainant said that the expenses were not paid at the actual cost submitted, but for a lower value.  Sometimes he got paid his wages, but he got no expenses.  He said that when he spoke about this to one of the MDs, he was told that they were waiting on funds to come in so that they could pay him in full.

On March 4th 2022, the complainant was assigned to video a wedding in Westport, County Mayo.  He rented a car and travelled to Mayo.  The details he was given of the location of the church were incorrect and, as he was trying to find the correct location, he had an accident.  The Gardaí who were called to the scene assessed the car as unsafe to drive.  The car was towed away and the complainant phoned one of the MDs, Mr Gibbons, who instructed him to make his own way home.  The complainant said that he had to stay overnight in a hotel and he travelled back to Dublin the next day by train.  He got a bill for the rental company for the cost of the damage to the car.

Following the accident, the complainant said that he handed in his notice.  He said that he couldn’t travel to weddings without a proper means of transport.

When he left, the complainant said that he looked for payment for the cost of the overnight accommodation, the train back to Dublin and the car rental.  He said that the MDs then started to accuse him of bad workmanship and they claimed that they lost money because of him.  He had to look for another job and he hadn’t got time to persist with seeking payment from his former employer.  Eventually, he was advised to submit a complaint to the WRC.

From the date that he started working for the respondent, the complainant said that he didn’t receive a statement of his terms and conditions of employment and there were consistent delays with the payment of his expenses.  The complainant said that he “tried to keep things friendly” and he hoped that the MDs would do the right thing.  He said that he was patient, and over a period of more than one year, he was promised that he would be paid his out-of-pocket expenses.  The last communication he had with one of the MDs was in August 2023.  This complaint was submitted to the WRC on June 30th 2023.  In the end however, the complainant wasn’t reimbursed for his expenses.  At the hearing, he said that the respondent owes him €2,927.88 for the cost of the car rental and toll fees.  He paid €250 to the car rental company as a result of the accident, and overnight and travel costs came to around €100.  In total, he claims that his former employer owes him €3,350.

The first issue that must be considered is the issue of the time limit for submitting a complaint to the WRC.  In accordance with s.41(6) of the Workplace Relations Act 2015, a complaint must be submitted within six months of the contravention to which it relates, or, if there is reasonable cause for the delay, within 12 months.  This complaint was submitted to the WRC on June 30th 2023.  It is concerned with the failure of the respondent to pay expenses incurred by the complainant in March 2022.  Even with an extension of the time limit, it is apparent that the complaint is outside the statutory time limit for which I have jurisdiction to conduct an investigation.

The second issue to address is the issue of wages.  The complainant claims that his former employer owes him approximately €3,350 in expenses that he incurred while working for them.  Unfortunately, the definition of “wages” at section 1 of the Payment of Wages Act 1991 specifically excludes expenses:

[W]ages in relation to an employee, means any sums payable to the employee by the employer in connection with his employment…

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[.]

Based on the uncontested evidence of the complainant, I am satisfied that the respondent owes him €3,350 in expenses that he incurred in the course of his work with them up to March 4th 2022.  However, I have no authority under the Payment of Wages Act to direct the respondent to pay him this money.

For the reasons I have set out above, I decide that this complaint is not well founded.

Expenses, definition of wages