ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00037652
Parties:
| Complainant | Respondent |
Parties | Paulo Nobrega | Harrington Property Management |
Representatives | self | Martin Moloney M.P. Moloney Solicitors |
Complaint(s):
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00049088-001 | 03/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00049088-002 | 03/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00049088-003 | 03/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00049088-004 | 03/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00049088-005 | 03/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00049088-006 | 03/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00049088-007 | 03/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00049088-008 | 03/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00049088-009 | 03/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00049088-010 | 03/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00049088-011 | 03/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00049088-012 | 03/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00049088-013 | 03/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00049088-014 | 03/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00049088-015 | 03/03/2022 |
Date of Adjudication Hearing: 20/08/2024
Workplace Relations Commission Adjudication Officer: Brian Dalton
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
The Complainant lodged his complaints with the Commission on the 9th of March 2022.He alleged that her relationship changed from being a tenant to that of an employee with the Respondent.
The initial arrangement between the parties was accommodation in a student residence in return for being a contact for students out of hours. The contact was to assist students who may have been locked out by accident or for ad hoc assistance.
The Complainant stated that this arrangement overtime became very demanding and required many hours of her time. The complainant is a non-national and worked as for another company, it is alleged in an IT role. His partner worked as a cleaner for another company at the residence.
He left the residence on or about the 19th of July 2021 and stated that he began his employment on or about the 14th of June 2019 along with his partner.
The Respondent stated that the arrangement was an informal barter arrangement akin to a license or tenancy. It was a barter arrangement and a fair exchange. It was based on reciprocity to assist with emergency situations when someone lost their keys, arrived at the accommodation after hours or other unplanned events. That arrangement was made with the Complainant’s wife and not with the Complainant.
The residence had contracted cleaning with a management services company, onsite maintenance staff and an office manager. It required a point of contact for students during out of office hours. The timeframe when it is alleged the Complainant was working more than 26 hours as a security guard occurred during Covid when there were no students staying at the residence. There were builders and trades persons and nurses; however, the level of support required for these guests was low. It is denied that any work was required from the Complainant. His wife may have asked him to let a student into an apartment or to contact the emergency services if required; however, that was not at the direction of the Respondent.
The apartment exchange was an exchange based on foregoing rent in exchange for being available out of hours to assist students with unforeseen situations. It was not an onerous responsibility.
It was a valuable and fair exchange based on the going market rent for an apartment or student apartment in Dublin. The Complainant’s partner also stayed in the apartment.
The Respondent stated that the complaint was out of time since the relationship ended on or about the 19th of July 2021. It is also their position that the relationship cannot be defined as an employment relationship.
There are two preliminary matters to be determined prior to hearing any substantive matters regarding employment rights claims:
· The nature of the contract between the parties · Whether the complaint is statute barred. |
Preliminary Matter:
The Respondent entered into a barter arrangement with the Complainant’s partner. And arising from the request for the hearing to be scheduled separately a decision regarding the earlier hearing has issued.
Each case must be heard on its own merits.
In the earlier case although time to lodge the complaint was made outside of the 6-month period time was extended for reasonable cause, that decision was made for the following reasons:
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00037692
Parties:
| Complainant | Respondent |
Parties | Mariana Nobrega | Harrington Property Management |
| Complainant | Respondent |
Parties | Mariana Nobrega | Harrington Property Management |
Representatives | self | Martin Moloney M.P. Moloney Solicitors |
Preliminary Decision about Time Limit:
I have determined that a delay of 1 month in filing the complaint should not preclude the Complainant from the case being heard. The reasons for extending time relate to the unique facts of this case relating to barter, the fact that the Complainant is a non-national and that the exceptional circumstances in this case did contribute to the delay having regard to a lack of awareness by the Complainant about her employment rights. The representation by the Respondent that no employment contract existed along with her employment status with another agent and specified working hours based on her visa and being a non-national, provide grounds so that the Complainant should not be denied access to justice. The law provides for an extension of time for reasonable cause and the circumstances of this case meet the test to grant such an extension of time.
There is an important distinction in this case when compared to Ms Nobrega and that relates to the fact that Mr Nobrega’s English is excellent, and this was demonstrated at the hearing when he required little or no assistance from the translator. It also was demonstrated in correspondence he sent to the Commission. Setting aside that difference and applying the same discretion to extend time the second issue relates to the preliminary matter of employment status.
In Ms Nobrega’s case it has been determined that she is not an employee as a fact.
It cannot be denied that there is an interdependency between that determination and Mr Nobrega; that is particularly so as the arrangement to exchange a room for out of hours contact was made with Ms Nobrega and not with Mr Nobrega.
As a legal proposition can it follow where it has been found that Ms Nobrega is not an employee, that in fact Mr Nobrega was an employee, in the absence of any new additional evidence other than the direct evidence of Mr Nobrega that he was working 26 hours a week as a security guard? The nexus between the Complainant and the Respondent is the agreement entered into between his wife and the Respondent. If Ms Nobrega is not an employee and based on the absence of any corroborative evidence to support the Complainant’s assertion that he worked as a security guard for 26 hours per week, it is not likely that in fact he was working under the Respondent’s control.
The Complainant’s assertion is robustly denied, and he must adduce facts to support that claim. The Respondent argued that the claim is not credible. The relevant period of occupancy was during Covid when there were no students at the residence and in place of students allowing for some work exceptions, the residence had trades and craft workers and nurses residing at the property. There was no need for security. Mr Nobrega was never asked to attend to security duties.
The Respondent had a barter arrangement with the Complainant’s wife not with the Complainant. I have determined that was not an employment contract. The barter arrangement allowed for substitution, and I have determined that Mr Nobrega in fact substituted for Ms Nobrega. Arising from the nature of the relationship between Mr Nobrega and Ms Nobrega where he substituted for her as a contact person, I cannot find that he was in fact an employee. The work that Ms Nobrega carried out was ad hoc and infrequent. The level of control exercised by the Respondent was low. The fact was Mr Nobrega substituted for his wife. The factual matrix of this case does not support the proposition that the Complainant worked for the Respondent as an employee.
Summary of Complainant’s Case:
See preliminary matter |
Summary of Respondent’s Case:
See preliminary matter |
Findings and Conclusions:
Section 42 provides that: Dismissal of claim by adjudication officer 42. (1) An adjudication officer may, at any time, dismiss a complaint or dispute referred to him or her under section 41 if he or she is of the opinion that it is frivolous or vexatious (2) (a) A person whose complaint or dispute is dismissed in accordance with this section may, not later than 42 days from its dismissal, appeal the dismissal to the Labour Court. (b) A person shall, when bringing an appeal under this subsection, give notice to the Commission in writing of the bringing of the appeal. (c) A notice referred to in paragraph (b) shall specify the grounds upon which the appeal is brought. (3) Upon the hearing of an appeal under this section, the Labour Court may— (a) affirm the decision of the adjudication officer dismissing the complaint or dispute concerned, or (b) annul that decision and refer the complaint or dispute to the Director General. I have determined that the Complainant was not an employee. The Respondent had a barter arrangement with the Complainant’s wife not with the Complainant. I have determined that was not an employment contract. The barter arrangement allowed for substitution, and I have determined that Mr Nobrega in fact substituted for Ms Nobrega. Arising from the nature of the relationship between Mr Nobrega and Ms Nobrega where he substituted for her as a contact person, I cannot find that he was in fact an employee. Arising from this determination I must dismiss all complaints before me as being frivolous or vexatious. The term frivolous or vexatious has a specific legal meaning. And section 42 of the Act provides that a complaint can be dismissed at any time if it is deemed to be frivolous and or vexatious. These are legal technical terms and as explained Delaney and McGrath on Civil Procedure 4th Edition 2018 mean: The meaning of the words “frivolous or vexatious” as used in the context of s.10(1)(b)(ii) of the Data Protection Act 1988 as amended was considered by Birmingham J in Nowak v Data Protection Commissioner,28 where he stated that “frivolous, in this context does not mean only foolish or silly, but rather a complaint that was futile, or misconceived or hopeless in the sense that it was incapable of achieving the desired outcome.” This description was referred to by Irvine J in her judgment in the Court of Appeal in Fox v McDonald,29 where she stated that “the word ‘frivolous’ when used in the context of O. 19 r, 28 is usually deployed to describe proceedings which the court feels compelled to terminate because their continued existence cannot be justified having regard to the relevant circumstance.” Pursuant to section 42 as I have formed the opinion that the Complainant was not an employee, I dismiss all complaints as they are frivolous and misconceived. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have determined that the Complainant was not an employee. The Respondent had a barter arrangement with the Complainant’s wife not with the Complainant. I have determined that was not an employment contract. The barter arrangement allowed for substitution, and I have determined that Mr Nobrega in fact substituted for Ms Nobrega. Arising from the nature of the relationship between Mr Nobrega and Ms Nobrega where he substituted for her as a contact person, I cannot find that he was in fact an employee Pursuant to section 42 as I have formed the opinion that the Complainant was not an employee, I dismiss all complaints as they are frivolous and misconceived. CA-00049088-001 I dismiss this complaint arising from the fact that the Complainant is not an employee and is misconceived. The complaint is not well founded. CA-00049088-002 I dismiss this complaint arising from the fact that the Complainant is not an employee and is misconceived. The complaint is not well founded. CA-00049088-003 I dismiss this complaint arising from the fact that the Complainant is not an employee and is misconceived. The complaint is not well founded. CA-00049088-004 I dismiss this complaint arising from the fact that the Complainant is not an employee and is misconceived. The complaint is not well founded. CA-00049088-005 I dismiss this complaint arising from the fact that the Complainant is not an employee and is misconceived. The complaint is not well founded. CA-00049088-006 I dismiss this complaint arising from the fact that the Complainant is not an employee and is misconceived. The complaint is not well founded. CA-00049088-007 I dismiss this complaint arising from the fact that the Complainant is not an employee and is misconceived. The complaint is not well founded. CA-00049088-008 I dismiss this complaint arising from the fact that the Complainant is not an employee and is misconceived. The complaint is not well founded. CA-00049088-009 I dismiss this complaint arising from the fact that the Complainant is not an employee and is misconceived. The complaint is not well founded. CA-00049088-010 I dismiss this complaint arising from the fact that the Complainant is not an employee and is misconceived. The complaint is not well founded. CA-00049088-011 I dismiss this complaint arising from the fact that the Complainant is not an employee and is misconceived. The complaint is not well founded. CA-00049088-012 I dismiss this complaint arising from the fact that the Complainant is not an employee and is misconceived. The complaint is not well founded. CA-00049088-013 I dismiss this complaint arising from the fact that the Complainant is not an employee and is misconceived. The complaint is not well founded. CA-00049088-014 I dismiss this complaint arising from the fact that the Complainant is not an employee and is misconceived. The complaint is not well founded. CA-00049088-015 I dismiss this complaint arising from the fact that the Complainant is not an employee and is misconceived. The complaint is not well founded. .
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Dated: 26/08/2024
Workplace Relations Commission Adjudication Officer: Brian Dalton
Key Words:
misconceived |