ADJUDICATION OFFICER DECISION

Adjudication Reference:

Parties:

	Complainant	Respondent
Parties	Marius Oprea	Murphy Fire Protection Specialists Limited

Representatives

Self-represented

Complaint:

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-00057993-001	31/07/2023

Date of Adjudication Hearing: 11/01/2024

Workplace Relations Commission Adjudication Officer: Bríd Deering

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 and to present any evidence relevant to the complaint.

The Complainant was not represented and gave evidence under affirmation. Mr David Murphy, Director, gave evidence under affirmation on behalf of the Respondent. I allowed both parties the opportunity to cross-examine the evidence given at the hearing.

The hearing was conducted in public at the hearing rooms of the Workplace Relations Commission in Carlow. The parties were advised that they would be named in the decision.

Mr Murphy confirmed the correct legal name of the Respondent as ‘Murphy Fire Protection Specialists Limited’.

In making my findings I have considered the written submissions of both parties and the oral evidence of the parties given at the hearing.

Background:

The Complainant referred a complaint under the Payment of Wages Act 1991. He seeks payment of two invoices dated 30 April 2023 and 15 May 2023 for work completed by him at the request of the Respondent. The Respondent submits that the Complainant was not an employee of the Respondent but rather was self-employed, and therefore is not entitled to avail of the protection of the Payment of Wages Act 1991.

Summary of Complainant’s Case:

Oral Evidence of the Complainant

The Complainant submitted that he was self-employed and provided services to the Respondent at various locations from 1 September 2022 until 8 May 2023. The Complainant outlined that he invoiced the Respondent every two weeks for services rendered. However, he frequently had difficulty in getting the invoices paid on time. When he queried the non-payment of an invoice, the Respondent always had an excuse such as he was on holidays or out of the office. All invoices submitted were eventually paid, except for the last two invoices dated 30 April 2023 and 15 May 2023 for the total amount of €2,900. This amount remains unpaid. The Complainant outlined that the Respondent refused to pay the last two invoices as the Respondent alleged the jobs were incomplete. The Complainant submitted that the paperwork was completed in full and that the invoices should be paid. The Complainant confirmed to the hearing that the Respondent deducted 20% tax on the invoices he submitted to the Respondent, and that he otherwise took care of all other tax obligations which fell on him given he was self-employed.

Summary of Respondent’s Case:

Oral Evidence of Mr Murphy

Mr Murphy outlined that there is a dispute concerning the non-payment of two invoices, however, the matter does not concern wages. The Complainant was self-employed and work was sub-contracted to him by the Respondent. The Complainant was issued with a written Contract for Service in 2023. The Respondent deducted tax as per Relevant Contracts Tax (RTC) which, he described to the hearing, is a withholding tax that applies to certain payments by principal contractors to subcontractors in the construction industry, and that the Complainant was thereafter responsible for his own tax affairs. The Respondent submitted that the Complainant was not entitled to avail of the protection of the Payment of Wages Act 1991. The Respondent directed the hearing to ADJ-00046994.

Findings and Conclusions:

Law

The Payment of Wages Act 1991 (“the 1991 Act”) provides protection for employees in relation to the payment of wages. Section 1(1) of the 1991 Act defines wages in relation to an employee as meaning any sums payable to the employee by the employer in connection with his employment.

Section 1(1) of the 1991 Act defines an employee as:

“. . . 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 . . . .”

Section 1 (1) of the 1991 Act provides that an ‘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.

A contract of employment is defined at s 1(1) of the 1991 Act as:

“(a) a contract of service or of apprenticeship, and (b) any other contract whereby an individual agrees with another person to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract) whose status by virtue of the contract is not that of a client or customer of any profession or business undertaking carried on by the individual, and the person who is liable to pay the wages of the individual in respect of the work or service shall be deemed for the purposes of this Act to be his employer, whether the contract is express or implied and if express, whether it is oral or in writing” (emphasis added).

Finding

It was common case the Complainant was self-employed and the Respondent sub-contracted work to him at the time to which this complaint relates. As the Complainant was not engaged under a contract of employment as defined at s 1(1) of the 1991 Act, I find that he does not have locus standi to pursue a complaint under the 1991 Act.

Decision:

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

I decide that the complaint under the Payment of Wages Act 1991 is not well-founded.

Dated: 29th January 2024.