ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00049984
Parties:
| Complainant | Respondent |
Parties | Tomasz Jama Lipa | Treade Credebt Limited |
Representatives | Self-Represented | Ms S Lynch, Company Representative |
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-00061379-001 | 02/02/2024 |
Date of Adjudication Hearing: 14/05/2024
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act and Section 6 of the Payment of Wages Act, 1991, 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 peril of committing Perjury was explained to all parties.
No issue regarding confidentiality arose.
Background:
The issue in contention was a sum of money, (approximately €14,400) which the Complainant alleged that he was due from the Respondent. The alleged employment began on the 8th March 2023 and ended on the 2nd September 2023. The rate of pay was stated by the Complainant to have been €90 per hour for a 40-hour week. The Respondent vigorously contested the complaint and stated that no Employment relationship between the Parties, had ever existed.
It was a Contract FOR Service between an independent Contractor and the Respondent Company. In addition, there was a major query regarding who the correct Respondent was, an Irish Company or a linked Company in the group based outside of Ireland. |
1: Opening legal Arguments / Of and For Service.
1:1 Respondent views
The Respondent was represented by Ms Lynch, Company Representative, who gave a detailed Oral Testimony supported by written evidence.
Significant documentation was submitted in evidence to support the case that the Complainant was a Contractor/Supplier of Software to the Respondent and was never an employee.
The crucial document was the “Supply Agreement” between Ifrit Software (the Complainant’s Company) and the Respondent.
Ms Lynch pointed out that nowhere in this Document was there any suggestion of an employee/employer relationship. It was a Commercial Agreement to supply Software Services to the Respondent.
The Parties had disagreed, and various sums of money were in dispute. The resolution of this issue is a matter for Commercial Law and not within the remit of the WRC.
1:2 Complainant views
The Complainant was self-represented. He gave an Oral Testimony supported by a body of significant documentation.
In his Oral Testimony he was not at all certain as to what his exact Employment Relationship had been with the Respondent.
On questioning by the Adjudicator, it was clear that a normal employee/employer employment contract – (Legally OF Service) had never been envisaged or had in all probability ever existed. The Complainant, although not Professionally Represented, gave the Adjudicator the clear impression that he, the Complainant, accepted that this had effectively been the case.
The Complainant had actively, in his own words, considered a Commercial Court remedy but had opted for the WRC as a less financially hazardous course of action.
1:3 Adjudication discussion
This issue, the distinction between Contacts OF Service and FOR Service has been the subject of significant Legal discussion for quite some time.
The definite positon was established in late 2023 by the Irish Supreme Court decision in The Revenue Commissioners and Karshan (Midlands) Ltd trading as Domino’s Pizza. [2023] IESC 24.
At Para 43 of the Supreme Court decision, referred to above, the Justices quote from the now famous Montreal v Montreal Locomotive Works ltd [1947] 1 dLR 161 .
In this case Cooke J is quoted as saying (at P 184-185)
“the fundamental test to be applied is this “Is the person who has engaged himself to perform these services performing them as person in business on his own account?”
If the answer to that question is “Yes” then the contract is a contract for service. (Commercial Business) If the answer is “No” then the contract is a contract of service” (Employer/Employee)
In this case and on the basis of the Oral Testimony and the Written Materials supplied, invoices, copy e mails etc it was only open to the Adjudicator to decide that the contact in this case was a contract for service. “
Accordingly, the complaint referred is Legally outside of the remit of the Workplace Relationship Commission and cannot proceed.
2: Findings and Conclusions:
The complaint is a dispute over a contract FOR Service. It is outside the Legal jurisdiction of the WRC. |
3: Decision:
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.
CA-00061379-001
The complaint is not Legally Properly Founded and is outside the jurisdiction of the WRC. The Complaint fails.
Dated: 10-09-2024
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Of and For Service. Payment of Wages Act,1991 |