ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00049830
Parties:
| Complainant | Respondent |
Parties | Naomi Sarah Mudiay | Akina Dada Wa Africa Ltd |
| Complainant | Respondent |
Representatives | Self-Represented | Roberta Urbon of Peninsula Business Services Ireland |
Complaint:
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-00061184-001 | 24/01/2024 |
Date of Adjudication Hearing: 22/05/2024
Workplace Relations Commission Adjudication Officer: Michael McEntee
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 by me and to present to me any evidence relevant to the complaint.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Affirmation or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Oath / Affirmation was administered to all witnesses present. The legal perils of committing Perjury was explained to all parties.
No issue regarding confidentiality arose.
Background:
The Complainant was employed as an Admin/Communications/Project Officer with the Respondent Employer, a Representative & Consultancy Organisation.
The Employment began on the 1st July 2023 and ended (a contested point) on the 3rd or the 20th December 2023. The Complainant stated that she was, simultaneously, on two forms of Employment, firstly a standard Contract Of Service as an Office Administrator and secondly a Consultancy Contract ForService as a Consultant.
The complaint related to the alleged Contract for Service only.
The rates of pay were also disputed. The Complainant stated that they were in total, across two employments, €2,490 for a 40-hour week. |
Contract of Employment / Of or For Service
The Respondent argued strongly that the alleged Consultancy Contract was For Service and as such was not justiciable by the WRC under the Payment of Wages Act,1991
The Respondent referred to extensive case law leading from the landmark Revenue Commissioners v Karshan (Midlands) Ltd t/a Domino’s Pizza [2023] IESC case.
From an Adjudication point of view and having closely read the Supreme Court case referred to the key concept was the stricture of the Court that the key issues always had to be based on
“Admissible factual matrix and having regard in particular 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”.
In this case the alleged Employee was a young lady engaged with a Consultancy organisation. The Working arrangement was unusual, to say the least, a week split between an Administrative contract (Monday, Wednesday and Friday) and an alleged Consultancy contract on Tuesday and Thursday.
It was clear from the Oral testimony, under sworn oath, that both positions became inextricably intertwined and a rigid demarcation was not clearly identifiable. Issues of Control and the various Tests normally suggested to differentiate between the two types of employment were simply not possible.
On this basis the Adjudication Officer decided to allow the complaint to proceed as an overall Contract of Service complaint.
1: Summary of Complainant’s Case:
The Complainant gave an Oral testimony supported by her detailed complaint form. She had been employed in two positions. The first being as an Office Administrator from the 1st July 2023 for a 21-hour 3-day week at an annual salary of €16,000 per annum. This worked without incident and no PoW claim is made on this account. The second employment, dated from the 31st July 2023 was as a “Consultant” for two days a week at a Contract rate of €17 per hour. The Complainant alleged that the CEO instructed her to lodge a monthly invoice for €1,250 which she did without incident until December 2023. In December 2023 she received no payment, and her claim is for the outstanding “Consultancy” €1,250 for December. The essence of her case was that she had a clear verbal agreement with the CEO to invoice for €1,250 per month. This was fine until she submitted her notice to leave the Organisation in December 2023 and in her argument the CEO reneged on her word for the December payment. |
2: Summary of Respondent’s Case:
The Respondents gave an oral testimony from the Senior Managers, Dr Mb and Dr Mu. The principal spokesperson was Ms Urbon of Peninsula Business Services. Leaving aside the jurisdictional case the Respondent presented an analysis of days worked in December and earlier months. These pointed to a significant overlap between the two employments -to the extent that the Complainant had over the period charged under the Consultancy heading for time when she was in effect supposed to be doing Administrative work. The Respondent produced records that indicated that a shortfall or over payment of €1,847 had taken place. On this basis the Respondent had not paid the December Consultancy invoice. The Respondent argued that the amount referred to was in effect an over payment and as such was not “Wages properly payable” as specified by Section 5 of the Payment of Wages Act,1991. |
3: Findings and Conclusions:
3:1 Legal positon - evidence given under Oath. Taking the Supreme Court view of looking at the “Admissible factual matrix” a key question was the dichotomy in Oral testimony between the Parties regarding the relationship/ salary instructions between the CEO, Dr Mb and the Complainant. The CEO, Dr Mb gave very coherent professional evidence and was supported by her colleague Dr Mu. The Spokesperson, Ms Urbon, pointed out that the Consultancy was a highly regarded Institution, and the Management had a most professional and indeed exemplary track record. The concept of a loose Verbal Agreement as suggested by the Complainant simply would not happen. It was inconceivable. The Complainant, also under sworn oath, gave very heartfelt evidence that nothing she had done was in any way irregular and had always been under the watchful eye of the CEO. Any suggestion of dishonesty was vigorously contested. Issues over the Complainant’s sick leave and attendance/nonattendance at a Staff Christmas party were also referred to. Notwithstanding the legalities outlined above the facts presented in evidence have to be looked at. 3:2 The Evidence presented. From an analysis of Time Sheets presented it was argued by the Respondent that the only day in December that the Complainant was legitimately working as a Consultant was the 12th December. All the other claimed days were occasions where she was engaged as an Administrative Assistant for which she had been fully paid. A possible amount of €119 was in theory hypothetically due. A complete conflict of Testimony was evident here – the Complainant stating that she was in effect carrying out instructions from the CEO . She had submitted her Invoice, as in previous months for €1,250 as per the alleged CEO arrangement. The Respondent absolutely denied this arrangement ever existed. The Complainant pointed to the pattern of months since July where it had been paid without incident. Section 5 of the Act states Regulation of certain deductions made and payments received by employers. 5.—Sub Section 5 (5) Nothing in this section applies to— (a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where— (i) the purpose of the deduction or payment is the reimbursement of the employer in respect of— (I) any overpayment of wages, or (II) any overpayment in respect of expenses incurred by the employee in carrying out his employment,
Recovery of over payment of wages is clearly provided for. However, Sub section 5(2)(ii) states that Deductions should be “fair and reasonable”. 3:3 Adjudicator Conclusions There was a major conflict of Oral evidence in this case. Legally and on the basis of documentary evidence the balance of the case has to rest with the Respondent. However, the Acts reference to requirements to be “fair and reasonable” equally cannot be ignored. Both parties were very firm in their oral contrasting evidence as regards the loose CEO/Complainant “Arrangement”. There was a considerable age and experience gap between the Parties but nothing on either side to indicate a lack of veracity under oath. Accordingly, the Adjudication view, having heard the extensive and contrasting Oral testimonies and considered the balances of probabilities is that a sum of €500 be paid to the Complainant as a full and final settlement of the case. The Act, Section 6, allows for “Part Well Founded” decision and this is, as a reasonable outcome for both sides, appropriate here.
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4: Decision:
CA-00061184-001
Section 41 of the Workplace Relations Act 2015 and Section 6 of the Payment of Wages Act,1991 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of the cited Acts.
Section 6 (1) refers to a complaint being in “whole or in part well founded “.
The Complaint is deemed to be “in part” well founded and a sum of €500 is to be paid to the Complainant.
Dated: 31-07-24
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Payment of Wages, Service of or For, Conflict of evidence. |