ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00037692

Parties:

Complaint(s):

Date of Adjudication Hearing:  06/06/2024 reconvened

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). 3 hybrid hearings were held with the Complainant attending by remote link. The hearing reconvened as the Respondent raised a preliminary objection about time. All witnesses and the translator were sworn in.

Background:

Preliminary Matters:

Statute Barred:

The Relationship between the parties ended on or about the 19th of July 2021. The complaint was lodged with the Commission on the 7th of March 2023. The Complainant stated that she was not familiar with Irish Law and only after leaving her employment did she become aware of her employment rights. English is not her first language.

The Nature of the Contract between the Parties:

The Respondent stated that the agreement between the parties was akin to a service where students had a point of contact and return the Complainant received free accommodation:

1. The Applicants were at no time employed by the Respondent in any capacity.
2. The Respondent believes and will say that the Applicants and both of them resided in Ireland on Stamp 2 Student Visas or equivalent limited entry visa. The Stamp 2 visas are granted by the Irish State for the purposes of attendance for study. An ancillary benefit of such visa is the right to work no more than 20 hours per week.
3. At all relevant times both Applicants were employed in other positions in Ireland in compliance with their visa limitations.
4. The Applicants occupied the residential portion of the ground floor office at a premises in Shanowen Hall, Santry, Dublin 9. The Respondent occupied the office portion for the administration of its business. Its business was the administration and management of student specific accommodation.
5. The parties agreed an arrangement whereby, in exchange for a rent-free occupation of the residential portion of the office space at Shanowen Hall, the Applicants agreed to provide a record for the Respondent of calls made out of hours by students in the accommodation centre.
6. The was no monetary exchange and no sums were agreed for payment as a result of the provision of free-living accommodation to the Applicants. The Applicants agreed to provide a service.

At the second day of hearing the Complainant maintained that she had become a prisoner in the apartment. That all her time was taking up with looking after students and that the arrangement became onerous. She was involved in moving furniture and getting apartments ready for students, welcoming students and looking after services. This was not a casual and ad-hoc arrangement. The Respondent placed very onerous demands on her.

CASE MANAGEMENT:

Allowing for the stark difference in accounts between the parties a 3rd hybrid hearing was reconvened, and the Complainant was directed as follows on the 23rd of November 2023:

Complainant Records/Witness:

At the hearing yesterday when a translator was present each complaint was reviewed, and it was explained to you that some are duplicate and that compensation if it was to be awarded would not be awarded twice for a complaint that in essence was the same and based on the same circumstances.

You have alleged under oath that you were on call 24 hours 7 days a week and that you on average worked 30 hours a week. You have alleged that you could only leave the premises for about 30 minutes to 1 hour. You have alleged that the Respondent asked you to work so that you could not attend your employment as a cleaner. You state that the value of your accommodation was no more than €900 and you state this must be halved for your share which means that per month you allege that you were in receipt of consideration to the value of €450.

It was explained to you that you must detail for the last 6 months of your relationship with the Respondent until the end of July 2021 the average weekly hours you worked.

In terms of holidays the statutory leave year begins on the 1st of April to the end of March. You must detail the total number of hours that you have worked for the relevant holiday years.

If you wish to rely on mobile phone records, you need to produce them and forward to the Commission.

If you wish to call a witness, you must indicate if that witness will be attending voluntarily and why you are calling him or her.

If you wish to summon a witness because they will not turn voluntarily you must give the exact details so that the summons can be properly served on that person.

You need to produce a copy of your visa and detail what hours you were allowed to work for the periods you are claiming compensation. You need to state for the periods that you are claiming compensation how many hours were you working for the cleaning company if any?

You must provide the required detail so that the Respondent knows what you are claiming no later than the 5th of December 2023. Failure to produce such the necessary degree of particulars may lead to an adverse inference being drawn.

You will have a further 2 weeks to make any comments on what the Respondent will send to you and as this will occur over the Christmas Holiday period, I have decided to extend time for both parties to conclude all replies by the 7th of January 2024.

It would appear that your complaint is out of time by about 1 month. There is discretion to extend time for a reasonable cause and your application is being considered.

Respondent Records:

DearMr Moloney,

You have been afforded time to produce documents relating to phone records and occupancy levels that your client relies on to show that the commitment between the Respondent and the Complainant was not arduous and was incidental and ad hoc in character. You have until the 5th of December 2023 to produce such records. Then all replies between the parties will cease on the 7th of January 2024.

Case Law sent to Respondent about Extending Time:

DearMr Moloney,

Please note that at the hearing I reference a case where the Labour Court did in fact extend time to a non-national, I now provided details of that case to you which is from Regan’s Employment Law Bloomsbury 2nd Edition:

[28.24]

The case law of the Labour Court demonstrates that, with the exception of employment equality cases, a complainant must not only show that ‘reasonable cause’ was present but also that it prevented or inhibited the timely presentation of the complaint. 45

Section 77(5)(b) of the 1998 Act does not require that the reasonable cause prevented the claim from being lodged within the initial period.

In Cementation Skanska v Carroll, 46 the Labour Court said that, in considering whether ‘reasonable cause’ exists, it was for the complainant to show that there were ‘reasons which both explain the delay and afford an excuse for the delay’. The Court continued:

The explanation must be reasonable, that is to say that it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression ‘reasonable cause’ appears in statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he [or she] would have initiated the claim in time.

The Court went on to say that the length of the delay should also be taken into account. A short delay might only require ‘a slight explanation’ 47 whereas a long delay might require ‘more cogent reasons’.

[28.25]

Ordinarily, ignorance of one’s legal rights would not provide a justifiable excuse for a failure to bring a claim in time. It would appear, however, that the Labour Court is prepared to take into account the fact that foreign nationals could not be expected to understand the nature or detail of the process through which their rights might be vindicated. 48

In Alert One Security Ltd v Khan, 49 the Labour Court extended time in circumstances where the complainant was both ignorant of how to process a complaint and was relying on the assurances given to him by the employer that he was either receiving his legal entitlements or that those entitlements would be met. The Court regarded it as ‘well settled’ that a material misrepresentation which caused or contributed to a delay in presenting a complaint could constitute ‘reasonable cause’ which both explained the delay and provided a justifiable excuse for same.

The amicable nature of the relationship that existed prior to the termination of employment does not of itself constitute reasonable cause for delay in presenting a complaint. 50

On the 9th of February 2024 the Adjudicator wrote to the Complainant stating:

DearMs Nobrega,

Further to your submission of the 5th of December 2023 I will be reconvening to hear the evidence of Mr Ashokanand (Ashok) Yadav. Please note that you have stated that he will appear voluntarily. Please note that the primary reason for reconvening is to hear his evidence. If he declines you need to make contact with me so that the time is not wasted.

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.

3rd Hearing Day-Witness:

No witness was called by the Complainant at the last day of hearing.

The Respondent did call a witness a new office manager who gave evidence about how the student residence was run and that in her view the allegations that the Complainant was working more than 30 hours in addition to her cleaning 20 contract hours was not credible. That was so as the Residence had its own fulltime services staff. The account given by the Complainant was not in her view credible.

The Complainant stated that what the Office Manager was saying could only be persuasive if she had been at the residence at the time, but she was not.

Records:

Both parties submitted records to support their case; however, on review nothing turns on them.

The Complainant was working at the residence as a contract cleaner. The phone messages submitted do not show that the Complainant was working 20 to 30 hours in exchange for accommodation. The Complainant’s position attached to the records submitted states:

I would like to highlight that the manager Mr. Ashokanand (Ashok) Yadav, who worked daily from 9:00 to 17:30 at the Shanoween Hall office, was the person responsible for giving me instructions for both the cleaning work carried out by the Cleanscape company, and for asking me to carry out extra duties related to the office that were not agreed in the arrangement with Mr Harrington. Although, it was known to Mr. Harrington that I was carrying out these tasks outside of agreed hours and in the middle of activities that should be exclusively related to the cleaning company. And he only asked for these activities because there wasn't the office employee who previously did it. Soon, it felt like I was doing the work of someone they should have hired to do it. A new employee was later hired part-time, but I continued to perform the duties. Average hours worked: • 20-30hrs/weekly Although the agreement was to be available at any time necessary between 5 pm and 9 am, an average of the weekly hours actually worked must be considered between 20 or 30 hours weekl

The facts are the Complainant was working as a contract cleaner for another company at the residence. The Complainant has produced no independent evidence to support her claim. In that regard the market value of a one-bedroom apartment of the order of at least €900 per month appears to be a reasonable exchange for ad hoc support as detailed by the Respondent. The evidence of the Respondent is more credible in this regard as a full-service team and office manager were working on site at the residence. The claim that in addition to her 20 hours work she also worked an additional 30 hours has not been substantiated by an independent means. All the facts show that this level of hours would not be required as:

• A contract cleaning service was in place
• Maintenance staff worked fulltime in the residence
• There was an office manager in situ with the exception for a brief period.
• The records produced by the Complainant are consistent with what the Respondent stated. That they relate to cleaning which was her job with another company and ad hoc showing of rooms. They do not support the claim for an additional 30 hours of work per week.

 The Complainant’s evidence fell considerably short when compared to the Respondent and regarding the actual hours exchanged between the parties for the accommodation, the Respondent’s account is more credible.

The arrangement may have been more than fair. A separate issue relates to determining what was the legal nexus between the parties, was it a licence, a contract for service or an employment contract?

Employment Status:

In Revenue Commissioners v Karshan Midlands Ltd T/A Dominos Pizza [2023] IESC 24 the Court detailed several questions to be asked to assist a decision maker when classifying if a contract is one of or for service(s):

The correct approach

253. The method prescribed by MacKenna J. in RMC as developed in Market Investigations and as applied by this court in Henry Denny continues to provide a reliable structure for the identification of a contract of employment. The parties in this case did not suggest that the approach adopted in those cases should no longer govern the issue. Developments in the law since that case, as well as the desirability of avoiding confusion in the future as to the need for ‘mutuality of obligation’, suggest that it can be usefully clarified. Thus, the question of whether in any given case a worker is an employee should be resolved by reference to the following five questions:

- 165 -

(i) Does the contract involve the exchange of wage or other remuneration for work?

(ii) If so, is the agreement one pursuant to which the worker is agreeing to provide their own services, and not those of a third party, to the employer?

(iii) If so, does the employer exercise sufficient control over the putative employee to render the agreement one that is capable of being an employment agreement?

(iv) If these three requirements are met the decision maker must then determine whether the terms of the contract between 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, are 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.

(v) Finally, it should be determined whether there is anything in the particular legislative regime under consideration that requires the court to adjust or supplement any of the foregoing.

233: In other words, the decision-maker is concerned to establish a right of control, over what is to be done, at least generally the way in which it is to be done, the means to be employed in doing it, the time when and the place where it shall be done. That must take account of the nature of the employment and the control an employer would be reasonably expected to exert. If unskilled, close direction as to the means and manner by which the work is to be done is to be expected, while if skilled, the employer would not be expected to be in a position to direct the worker as to how to achieve the prescribed objective.

234:But, if the putative employer does not enjoy the power to direct the type of work the worker is required to do, the relationship will not be capable of constituting an employment relationship (Minister for Education v. The Labour Court and ors. at para. 9.13, and para. 102 of the reported judgment). Similarly, if the service is provided to a person who has no entitlement to prescribe times by which the work is to be done, no power to determine where or in what conditions the work is to be done or, within an enterprise, the persons who were to do particular work, it is difficult to see how this requirement could be met. While in cases involving skilled work, it is to be expected that the employer will not have the right to direct how the work is to be done, the test requires that the employer retain some residual authority over it. An analysis of the cases suggests that experienced fact finders have had little difficulty in distinguishing those cases which present this minimum level of control, from those that do not.

Control:

The arrangement was entered into between the parties where accommodation was exchanged in return for being available to take resident calls out of office hours. There was on the facts a very low level of control if any and no supervisory role played at all by the Respondent. The relationship was based on trust.

 On the facts the level of responsibility was low.  Based on the factual matrix of this case and the sworn evidence of the Respondent, the new Office Manager and the records produced by the Complainant, the level of control required to establish a minimum level of control has not been met by the Complainant.

The Complainant was employed to work 20 hours a week at the residence; however, with another employer. It was this relationship that gave rise to an offer for rent free accommodation in return for being available to take out of office resident calls. The Respondent had a well-resourced team at the residence to carry out all planned work during normal working hours. The Respondent had contract cleaning in place. The probability of being required to work 30 hours a week during the evening and weekends is significantly less credible when the residence is staffed to do this work on a regular and scheduled basis. The breath of work being claimed by the Complainant in this context does not reconcile with the labour hours already in place with contract cleaning and a full-time dedicated team.

Substitution:

 Another important fact is the barter arrangement is with the Complainant and her Partner. This means that the Complainant or the Partner could provide the service. The fact that the accommodation was made available to a couple further affirms that the supervision normally attached to an employment relationship is absent. The couple would decide who would take the call and who would let the student into their apartment if he was locked out.

Additional Hours Worked:

The fact that I have determined that hours have not been at 20-30 hours a week means that this arrangement was ad-hoc and involved a commitment of sometime each week to take calls and to let students see a room before booking. This was an ad-hoc arrangement with a low level of control and does not meet the minimum threshold to establish an employment relationship. There is no supervisory contact between the parties. The relationship is based on trust and convenience as the Complainant was working at the site for another employer for 20 hours a week. For the reasons as detailed I determine that the contract was not a contract of service; the Complainant was not an employee. Arising from this decision the complaints are misconceived.

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Decision:

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

Dated:   25/07/2024

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Key Words: