Complainant

Respondent

Parties

Avtandil  Abzhandadze

Srj Contracts Ltd

Representatives

  Self-represented

 Did not attend

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-00052348-001

22/08/2022

The complainant has presented a complaint that the respondent made an unlawful deduction of €3626.50 from his wages in the 28/2/2022, contrary to the provisions of the Payments of Wages Act, 1991.

The complainant worked for the respondent as a fixer, working on ceilings from the 17/1/2022 until 28/2/2022 when his employment ended.

He earned €1176 gross per week. He worked 50 hours a week.

He submitted his complaint to the WRC on 22/8/2022.

At the hearing, the complainant advised that he was registered as a self-employed sub-contractor with Revenue and submitted two letters on this matter.

I advised the complainant of the definition of an employer and employee in the Act of 1991 and how jurisdiction to plead an entitlement extends to employees. I invited him to submit evidence using Revenue’s Code of Practice on Determining Employment Status.

The complainant advised that he had no contract of employment. He secured the job through a friend who gave him the respondent’s number.  The respondent is a sub-contractor for

The respondent director offered him the job at a rate of €25 an hour.

Upon questioning, he advised that he received no salary slips. His wages were paid into the bank account of his father who also worked for the respondent as the complainant did not have his own bank account at that time.

The respondent deducted tax and USC from the wages paid to his father and which encompassed both his own and his father’s wages.

He advised that he provided the tools for the job including hard hats and boots.

He did not have permission to employ anybody else. He did not have a PPS number.

The complainant submitted a letter from the respondent to his father stating that he owed the complainant’s father the sum of €6650 gross, €3652 of which the complainant states is owed to him. The respondent states in that letter that he is waiting for payment from the principal contractor in order to be able to pay the complainant’s father.

Though notified of the details of the hearing, the respondent did not attend.

I must decide if the complainant’s status is that of an employee, employed on a contract of service  and if the WRC has jurisdiction hear his complaints under the Act of 1991.

 Relevant Law.

Section 1 of the Act of 1991 contains relevant definitions. It states:

"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 and references, in relation to an employer, to an employee shall be construed as references to an employee. employed by that employer”.

It is necessary to identify what type of contract of employment, if any, existed in the instant complaint.

The Supreme Court in The Revenue Commissioners v. Karshan (Midlands) Ltd. t/a Domino’s Pizza: [2023] IESC 24 considered what it meant to be employed on a contract of service vs a contract for service and used 5 questions to assist in uncovering the answer. The first four are as follows:

1.Does the contract involve the exchange of wage or other remuneration for work?

In this instance the uncontested evidence of the complainant was that both he and his father shared a combined wage for the work done for the respondent.

2.Has the worker agreed to provide their services to the employer personally?

I find that the complainant agreed to provide services in the area of dry lining to the employer.

He was not allowed to engage a substitute.

3.Level of Control?

Does the respondent have the right to control the work as opposed to exercising that right?

I find that the respondent assigned to work to the complainant rather than directed him in the performance of the work.

The fact that the above three elements are or may be evident in the employment relationship between the complainant and the respondent in his workplace are not determinative of a contract of service.

The Court held that an additional filter should be employed to determine the nature of the employment relationship. It is that

“All the circumstances of the employment”

must be examined to determine the nature of the contract

The Supreme Court held at Par 236.

“In this regard, I think the right approach is to view the first (above) three questions I have just identified as a filter in the form of preliminary questions which, if anyone is answered negatively means that there can be no contract of employment, but if all are answered affirmatively, allow the interrogation of all of the facts and circumstances to ascertain the true nature of the relationship.”

The Court elaborated:

“Are the terms of the contact between the employer and worker interpreted in the light of the admissible factual matrix and having regard to the working arrangements between the parties as disclosed by the evidence, consistent with a contract of employment, or with some other form of contract having regard, in particular, to whether the arrangements point to the putative employee working for themselves or for the putative employer.”

Application of the Authorities to the circumstances of this complaint.

Factual Matrix.

Firstly, the complainant stated in direct evidence that he was registered as self-employed sub-contractor with Revenue. The letter dated 11/11/22 and the letter dated 18/4/22 which straddle his employment with the respondent, and which he produced upon request, was addressed to his father, named his father as the contractor, and made no mention of the complainant. It refers to contracts which preceded and followed on the period when the complainant worked for the respondent.

The complainant was unrepresented and had difficulty grasping that he had to demonstrate that he was an employee, who enjoyed the jurisdiction of the Act of 1991 and the powers of redress contained in the Act.

I find that he had no written contract, no pay slips, the letter from the respondent which he proffered as evidence of a contractual relationship between himself, and the respondent was addressed to his father, acknowledged that a debt was owed to his father, but makes no mention of any obligation towards the complainant. The complainant’s own evidence was that the respondent paid his own and his father’s wages, combined, into his father’s bank account. He had no PPS number.

The complainant stated in evidence that he provides his own tools.

He has lodged his complaint against a sub- contractor. The main contractor is two steps removed. There is not a scintilla of evidence to indicate that a separate contractual relationship existed between the respondent and the complainant whatever about a contract of some sort between the complainant and his father.

The courts have established a number of criteria to determine the nature of the employment relationship and it has been accepted that there is no one size fits all and that each decision must be based on the facts of the particular case.

Based on the facts of this case as presented in evidence, I do not find that the complainant was an employee, employed on a contract of service with the respondent.

I find that I do not have jurisdiction to hear this complaint.

I decide that I do not have jurisdiction to hear this complaint.

The complaint is not well founded.

Employment status unproven.