Complainant

Respondent

Parties

Kieran  Holloway

JC Electrical And Security Ltd

Complainant

Respondent

Anonymised Parties

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Representatives

  Self- Represented

 Peninsula

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-00061431-001

31/01/2024

The Complainant lodged a complaint for unpaid wages which was received on 31 January 2024. He appeared in person and gave evidence on Affirmation. Documentary submissions were filed in advance of the hearing and shared with the Respondent.

The Respondent, an electrical company services provider presented two witnesses who both swore an Affirmation: the Managing Director, Mr. Jonathan Coughlan and Mr. Ross Tracey, an employee. Submissions were received and shared with the Complainant.

The Respondent raised a preliminary objection that the Complainant did not fall within the definition of an employee and therefore, was not entitled to seek redress under the Payment of Wages Act 1991.

It was the Complainant’s evidence that he replied to an advertisement on the Indeed website for a role with the Respondent. He commenced employment on 21 November 2023 as a mobile sales representative based in Wexford. He stated that he was an employee and agreed to the terms of employment with Mr. Tracey via email dated 14 November 2023. The email provides for a base salary of €48,000 per year.

The Complainant testified that he did not receive his wages at the end of November. He sent an invoice from his own company but did not receive payment for wages or expenses. Despite asking Mr. Tracey in November 2023, he did not receive the employer number or details regarding when his wages would be paid. He confirmed that he has his own company, which issued the invoice.

On 5, 13, and 14 December 2023, the Complainant sent further emails regarding payment of the invoice. Payment was received on 14 December 2023. A second invoice was sent on 15 December 2023, with payment received on 11 January 2024.

Issues arose between the parties regarding the sales information and payment, and the Complainant provided evidence that his employment terminated on 19 January 2024. He stated that he was due wages in the sum of €4,430.72, together with expenses of €71.66.

It was submitted that the Complainant was not an employee, but a self-employed contractor engaged by the Respondent to carry out a sales function. The evidence from Mr. Coughlan and Mr. Tracey indicated that the Complainant submitted invoices from his own company, which were paid. He managed his own time, did not provide the work as requested, and was not disciplined for it. No work sheets or time sheets were presented by the Complainant

The Respondent’s evidence stated that it requested the Complainant to attend the offices, but he refused. The relationship ended after this in January 2024.

Legal submissions were made that the Complainant did not fall within the definition of an employee under Section 41 of the Workplace Relations Act 2015 and Section 6 of the Payment of Wages Act 1991.The Supreme Court judgment of Karshan (Midlands Limited) Trading as Domino’s Pizza -v- The Revenue Commissioners [2022] IECA 124 was relied upon by the Respondent.

Preliminary Issue

It is clear that the Respondent intended recruit an employee where it was undisputed the position was advertised as a full-time role. Considering the email of 14 November 2023 from Mr Tracey and the Complainant which clearly sets out the terms and conditions of employment. Of further note is the email from Mr Coughlan of 16 January 2024 where he states “…I wanted to discuss you about sending invoices as out agreement was to be a paye employee.”.

I find that there was a clear intention from both parties to enter into a contract of employment from the outset. Section 5 of the Payment of Wages Act 1991 provides for deductions from the wages of an employee. Based on the evidence presented, I find that there was an agreement between the parties that the Complainant was to be paid an annual salary of €48,000. The obligation lies with the Respondent, as the employer, to set out in writing the pay intervals an employee can expect to receive his or her wages. This was not done by the Respondent in this case.

It is further noted that the Complainant’s emails from November and December 2023 seeking payment were not responded to. The Respondent’s claim that he was too busy to organize the payment of wages is not accepted.

In terms of the expenses sought, I agree with the Respondent’s submission that expenses do not fall within the definition of wages as provided in Section 1 of the Payment of Wages Act. Furthermore, there is no provision for expenses in the email dated 14 November 2023.

Of note is the email dated 19 January 2024, in which the Complainant wrote to Mr. Coughlan stating:

“ It was agreed in an email from Ross on 14/11/23 that my starting salary would be €48,000, and verbally we agreed that €1,000 per month of this could be paid via invoice to my company. It was also stated that the salary could be re-negotiated at Christmas time subject to performance. €3,000 per month was to be paid by payroll.”

When asked upon inquiry why the Complainant made this request, it was his evidence that it was “more tax efficient”. I find this to be inconsistent with the definition

I find the complaint is well founded.

Redress is provided for under Section 6 of the Payment of Wages Act 1991 :-

“6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

(a) the net amount of the wages, or tip or gratuity as the case may be (after the making of any lawful deduction therefrom) that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.”

I find the complaint to be well-founded in terms of wages only, excluding expenses. I find his weekly wage was €923.08. The redress provides for compensation in the amount of the wages that would have been paid to the Complainant in respect of the week immediately preceding the date the payment should have been made.

However, I am reducing the award by a third, as the Complainant sought to divide the payment between a PAYE and a payment to his company. Therefore, I direct the Respondent to pay the Complainant compensation in the sum of €615.38.

Payment of Wages