Complainant

Respondent

Parties

Mr Ahmet Beylen

Kiernan Groundworks & Plant Hire

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

The Respondent did not attend and was not represented at the hearing. 

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-00061602-001

12/02/2024

This matter came before the WRC dated 12/02/2024 as a complaint submitted under section 6 of the Payment of Wages Act, 1991 alleging contravention of same.   

The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 16/05/2024. 

The Complainant has presented a complaint that the Respondent made an unlawful deduction of €1,257.00 from his wages on 12/01/2024.  The Complainant did some work for the Respondent in November 2023 for which he was paid.  The Complainant undertook some further work in January 2024 for the Respondent for which he claims he did not receive payment.

The Respondent is engaged in the business of site clearance, groundworks, drainage, housing, paving, kerbing and concreting.   

CA-00061602-001

The Complainant submits he did some work for the Respondent in November 2023 for a few weeks and then for a week in January for which he did not receive payment as agreed. 

The Complainant exhibited a number of email exchanges between the parties to substantiate his claim. 

The Complainant submits he was an employee of the Respondent.  The Complainant did not receive a contract of employment and he did not receive payslips.  The Complainant submits the Respondent is not registered on Revenue as his employer.

The Complainant submits he owed €1,257.00 for work he completed for the Respondent for which he did not get paid.  The Complainant submits he is seeking justice, and he expects to get this from the WRC and to get the money he is owed. 

The Complainant is adamant that he is an employee of the Respondent.  It is submitted by the Complainant that he is due this money and that the Respondent is not legally entitled or allowed to withhold the sum. 

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The Respondent did not attend and was not represented at the hearing.  I note the Respondent has not filed any rebuttal submissions or documentation.  In the circumstances, no evidence has been adduced by or on behalf of the Respondent.

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The Relevant Law

Preliminary Issue:  Employment Status of the Complainant

Payment of Wages Act, 1991 (“the 1991 Act”)

Section 1(1) of the 1991 Act defines a “contract of employment” as follows:

"contract of employment" means—

(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;

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

"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;

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

"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;

At the outset, I must be satisfied that a contract of employment existed between the parties such that a wage as defined by the 1991 Act was payable to the Complainant by the Respondent in connection with the employment. 

The determination of an individual’s employment status in the context of ascertaining whether or not that individual has standing to pursue claims under employment legislation is a mixed question of fact and law. 

It is necessary to identify what type of contract, if any, existed between the parties in the within complaint.  The Complainant, who was unrepresented, had a difficulty in understanding that he had to demonstrate that he was an employee before he would be entitled to avail of the protections of the 1991 Act and the powers of redress available therein. 

The subject of what constitutes a “contract of employment” for the purposes of the Act has been the focus of numerous superior court matters.  Most recently, the Supreme Court issued an authoritative determination in the matter of Revenue Commissioners v. Karshan (Midlands) Limited t/a Domino’s Pizza [2023] IESC 24.  Following the consideration of a substantial body of law in this particular area, the Supreme Court set out 5 questions that must be examined and considered prior to reaching a determination in this regard. 

The Supreme Court in Karshan considered what it is meant to be employed on a contract of service as opposed to a contract for service and held that the question was to be decided by reference to the following questions:

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

2.      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?

3.      If so does the employer exercise the level of control over the putative employee that would render the agreement one that is capable of being an employment agreement?

4.      If these three requirements are met the decision maker must then determine whether the terms of the contract between employer and worker interpreted in 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 himself or for the putative employer.

5.      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. 

The Court held that the fact the first three elements may or may not be evident in the employment relationship between the Complainant and the Respondent are not determinative of a contract of service and that an additional filter must be employed to determine the nature of the employment relationship and that is that all the circumstances of the employment must be examined to determine the nature of the contract [emphasis added]. 

The Supreme Court held at paragraph 236 as follows:

“In this regard, I think the right approach is to view the first (above) three questions I have 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 [emphasis added]. 

The Relevant Facts

At the outset I note the Complainant is adamant he is an employee of the Respondent and he is equally adamant the Respondent is his employer.  However, this line of argument is not supported by the facts as presented to me by the Complainant. 

The Complainant had no written contract and he received no payslips.  I note the Complainant accepts there was no restriction on him undertaking work for others and in other locations.  I note he provided the same services to others.  I note the Complainant had complete autonomy over when he worked and where he worked; in Athlone one week and maybe in Dublin the next.    

I am satisfied the What’s App/email thread/SMS screen shots between the parties exhibited by the Complainant proved of significant value in highlighting the exact nature of the employment relationship between the parties.    

I note one thread in particular that provides as follows:

Complainant:  Hi, I received 350 in the account.  Thank you.  But there must be a miscalculation I worked 3 full days that week.  Can you please review it

Respondent:  Half day Monday full day Tuesday & Wednesday.  And over paid week before for he Monday we didn’t go till 10.30 and the Friday didn’t start to 9.40

Complainant:  Then please accept my apologies for mistake

Respondent:  I might have a few jobs needing priced over Christmas would you like to price them be a bit extra money over the holidays.

Complainant:  Alright.  I have been working in Athlone since last Saturday.  So I will be free as of tomorrow.

Respondent:  What are you doing there

Complainant: I work with block ….

Respondent: Very good, I’ve a deep drainage job starting 2/1/24 have you an interest in it and b a bit of Quantity serving too

Complainant:  Hi, do you still want me to price that job….

Respondent:  yeah

Complainant:  Boss I just sent you priced BoQ for Ardee

Respondent:  good job, that’s priced for no material, just fuel plant and labour…ok I sent you another.  Record your time and I’ll pay for it

Respondent: Hi Ahmet, no work tomorrow I’ve to go away at short notice

Complainant:  I appreciate the way you kindly let me know

I note from the foregoing the Complainant provides tenders to the Respondent for specific jobs namely a groundworks package and an enquiry regarding paving and kerbing.  I note the Complainant has been requested by the Respondent to let him know the number of hours he spends on pricing jobs for the Respondent. 

I note the Complainant did some work for the Respondent in November 2023 and again from 02/01/2024 to 10/01/2024 in Walls Construction Site, Shanganagh, Co Dublin.  I note also the Complainant engages in other work because he makes reference to working in Athlone and in reply to a question from the Respondent “what are you doing there” the Complainant describes the job.   

In consideration of question 1 in Karshan it would appear that the Complainant was paid at the rate of €19 for work completed.  In consideration of question 2 in Karshan I find the Complainant personally agreed to provide labouring services and quantity surveying services to the Respondent.  In consideration of question 3 in Karshan I find the Respondent assigned the work to the Complainant rather than directed him in the performance of the work and I specifically note the Respondent’s question “I’ve a deep drainage job starting 2/1/24 have you an interest in it.”  I am satisfied the Complainant decides if and when to provide his labour. 

Taking into account all the circumstances leads me to conclude the Complainant has filed his complaint against a sub-contractor for whom he provided labouring services on a casual basis for a few weeks in November 2023 and again from 02/01/2024 to 10/01/2024 at the rate of €19 per hour and for whom he also provided quantity surveying services on request.  I note this amount set out in one of the email threads by the Respondent where he (the Respondent) states it was never a tax deducted amount. 

On balance and having carefully considered all the facts I have come to the conclusion the Respondent is a sub-contractor and the Complainant was engaged by the Respondent as a self-employed tradesman under a contract for service.  In so doing I have examined in detail all the circumstances of the employment from the uncontested evidence of the Complainant and from an examination of the communication threads between the parties set out above which have proved to be extremely helpful in establishing the true nature of the relationship between the parties. 

I am not satisfied that that a contract of employment existed between the parties such that a wage as defined by the 1991 Act was payable to the Complainant by the Respondent in connection with the employment. 

For the reasons set out above I conclude the Complainant, on the balance of probability, is self-employed because the facts as presented to me are indicative of such a status albeit he claims to be an employee of the Respondent, but this claim is not borne out by the facts as presented.  I am unable to find the Complainant was engaged under a contract of employment for the purposes of the Act.    

I conclude on the facts as presented that the Complainant is not an employee as defined in the Act.  Accordingly, I find that I do not have jurisdiction to hear this complaint. 

CA-00061602-001

I do not have jurisdiction to hear this complaint under section 6 of the Payment of Wages Act, 1991 for the reasons set out above.  I decide the complaint as presented to be not well-founded. 

Employment status; jurisdiction; Karshan;