Complainant

Respondent

Parties

Ravi  Shukla

Jenwood Investments Ltd. Seabank House

Representatives

  Self-represented

Dermot Duignan D&G Prevent

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-00063474-001

10/05/2024

The Complainant submits that from 13 March 2023 to 9 November 2023 he did not receive his share of the tips, gratuities or service charges which were paid in the Respondent’s licenced premises while he was providing catering services.

The Respondent rejects the complaint on the basis that the Complainant had a contract to provide catering services to the Respondent and was, therefore, not covered by the Payment of Wages Act 1991, as amended.

The Complainant submits that he is an employee of a company, Eliska Catering Limited trading as Ravi’s Asian Cuisine, that he co-owns with his wife, which entered into a caretaker’s agreement with the Respondent to provide catering services in the Seabank House, Eastwall Road for funerals, birthdays and other functions and to run a separate Indian takeaway from the same premises.  He confirmed that he was not an employee of the Respondent organisation.

The Complainant asserts that the Respondent told him that he would get his share of the tips that were paid in the pub.  The Complainant submits that he consulted Citizens Information who confirmed that, as a contractor, he was covered by the Payment of Wages Act 1991, as amended.

The Complainant’s solicitor wrote to the Respondent’s solicitor on 21 December 2023 as follows:

“Our client has also advised that your client has not distributed any tips or gratuities to our client and he is entitled to receive same.  Please furnish a statement of monies collected and our client’s share of same can also be paid to the same account.”

The Complainant submits that the Respondent ignored the above correspondence.

The Complainant gave evidence that he was an employee/owner of the company, Eliska Catering Ltd. And that a Caretaker Agreement was entered into between Eliska Catering Ltd. And Jenwood Investments.  The agreement commenced on 14 March 2023 and was for a 6-week period.  It was anticipated that a lease agreement for the premises at Eastwall Road would be finalised within that timeframe.  He outlined that the lease agreement was never signed as it was never finalised.

The Respondent submits that the Complainant is not covered by the Payment of Wages Act 1991, as amended, because she was contracted to provide a catering service to the Respondent and was not an employee.

At hearing the Respondent outlined that there had been difficulties in finalising the lease agreement and further difficulties in relation to payment of rents due.  The Respondent outlined that this matter was in civil proceedings.

The Respondent further outlined that the tips gathered were not significant and that they were only shared with the waiting staff who were employed directly by Jenwood Investments and that the four kitchen staff were all employees of Eliska Catering Ltd.  The Respondent confirmed that the “shift leader” divided the tips at the end of the shift accordingly among the floor/bar staff.

The Respondent further confirmed that there was never any agreement with Eliska or the Complainant in relation to the distribution of tips and that the matter was only raised by the Complainant after Eliska had left the premises in Eastwall Road.

The first matter for me to consider is if the Complainant is covered by the provisions of the Payment of Wages Act 1991, as amended (the Act). 

In this regard, I note that the part of the Act which grants me the powers to adjudicate and issue a decision under the Act is section 6(1), the relevant part of which states as follows:

“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 …”

As evident from the above, my jurisdiction under the Act is limited to investigating alleged breaches of sections 4C and 5 of the Act, both of which are solely concerned with the rights of employees.  The question I must now ask is if the Complainant falls within the definition of employee under the Act.

Section 1(1) of the 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 …” (emphasis added).

Section 1(1) of the Act defines a ‘contract of employment’ 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 personallyany 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).

I will now consider if the relationship between the Complainant and the Respondent comes within the scope of section 1(1) of the Act.

In Karshan (Midlands) Ltd t/a Domino’s Pizza [2023] IESC 24, the notion of a ‘test’ to determine employment status was rejected with Murray J concluding that the question of whether a contract is one of service or for services should be resolved by reference to the following five 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 sufficient control over the putative employee to 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 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.

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 first three questions are a filter, and if any of the three questions are answered in the negative there can be no contract of service.

I am of the view that the second question posed by Murray J is the key question in this case.  I note that there is no dispute that the Complainant was not an employee or apprentice of the Respondent but was an employee of Eliska Catering Limited which was contracted to supply a catering service to the Respondent at its licensed premises on Eastwall Road.  It was never suggested at the hearing, by either party, that the Complainant entered into an agreement to provide his own services to the Respondent, services were to be provided by a third party, Eliska Catering Limited.  I must, therefore, answer the second question set out by Murray J above in the negative.

Given that one of the three filter questions has been answered in the negative, it is not necessary to consider the matter any further because there can be no contract of service. 

However, the definition of ‘contract of employment’ under the Act is broader than that contained in other employment rights legislation as it includes individuals who are working under a contract for services.  In order to come within the definition of ‘contract for services’, the Complainant must show that he entered into an agreement with the Respondent on an individual basis “to do or perform personally any work or service for a third person”.   As indicated elsewhere in this decision, it is apparent that this was not the case. The Complainant was an employee of Eliska Catering Limited trading as Ravi’s Asian Cuisine which entered into a contract to provide a catering service in the Respondent’s public house. 

In relation to the other elements of a contract for services, there is no need to investigate whether the Respondent was “a client or customer of any profession or business undertaking carried on by” the Complainant as such relationships fall outside the scope of the Act.  However, this section also provides that “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”.  The Complainant did not, at any stage in the proceedings, claim that the Respondent was liable to pay his wages.

Taking all of the above into consideration, I find that the Complainant does not come within the definition of employee under the Act because he was not employed by the Respondent under a contract of employment as defined by section 1(1) the Act. 

In conclusion and having regard to all the circumstances of the complaint, it is my decision that this complaint is not well founded.

Payment of wages;