Complainant

Respondent

Parties

Ronaldo  Lopes Costa Reis Filho

Jayden & Preston Limited trading as Parcel King

Representatives

  Self-Represented

Roberta Urbon of Peninsula Business Services Ireland

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997

CA-00060963-001

12/01/2024

The Complainant referred a complaint to the WRC on the 12th January 2024 wherein he claimed that he was employed by the Respondent as a driver from the 18th July 2023 until the 4th January 2024. He stated that he did not receive his annual leave or bank holiday entitlements. The Respondent refuted this claiming that the Complainant was a self-employed operative engaged under a contract for services and the contract did not provide for holidays or bank holidays.

The Complainant provided me with comprehensive submissions on the 27th May 2024. These were copied to the Respondent.

Direct Evidence of the Complainant

The Complainant stated that he commenced employment with the Respondent on the 18th July 2023 and that his employment ended on the 4th January 2024. He did not receive either his annual leave entitlement or his public holiday entitlements.

He disputed that he was a self-employed operative and claimed that he was engaged under a contract of services as a delivery driver.

The Complainant stated he was not registered as being self-employed with the Revenue Commissioners and that never filed a tax return. He never submitted invoices to the Respondent. The invoices submitted to the WRC by the Respondent were given to the Complainant on his last day of work with the Respondent. Before that day he had never seen the invoices and they were not prepared by him. 

The Complainant was given a company van to carry out his work. He was not responsible for the payment of insurance or motor tax on the van. The Respondent was responsible for insuring and taxing the van. Petrol and tolls were paid for by the Respondent. The Complainant would fill up the van with petrol and pay for it and then he would submit the petrol receipts along with toll receipts to his supervisor and his expenses would be reimbursed to him by the Respondent.

Cross-Examination of the Complainant

The Complainant denied that he worked with family members in the van whether on multiple occasions or at all or that family members assisted him in carrying out his duties. The Complainant stated that he was not married and that he did not have any children in Ireland.

He accepted that he could finish work after he completed all of the deliveries. He stated that while it happened a few times it was very rare for him to be able to finish work early.

The Complainant confirmed that he had gone to Sligo for work but denied that he stayed in a hotel in Sligo with his wife and child. According to the Complainant the day he went to Sligo for work he started work early in the morning and finished late in the day and returned  home at approximately 11:00 pm. He again stated that he did not have a child in Ireland and was not married.

The Complainant stated that he did not have control over the days he worked, when he worked or where he worked. He worked full time, Monday to Friday, for the Respondent. Each working day he would meet his Parcel King supervisor at the depot, the supervisor would tell him what to do and how many deliveries he had each day. His morning routine was always the same: he met his supervisor, he would then go to the bay and take the deliveries for Kells, Co. Meath, he would input the Eircodes into a Parcel King App (and later a more up to date App) in order for his route to be determined, he would load the van and he would do the deliveries. He worked primarily in the Kells area so all parcels to be delivered in that area were given to him. He explained that Eircodes were inputted into the App and the App determined the most fuel-efficient route to take. He stated that urgent parcels could not be delivered after 10:00 am so if he had an urgent parcel or parcels to deliver they had to be delivered first and before 10:00 am.

The Complainant reported everything to his supervisor and all petrol and toll receipts were given to his supervisor. If the Complainant was going to be late or absent from work due to illness he had to contact his supervisor.

On occasion the Complainant would do more deliveries than usual if another one of the Respondent’s drivers was out sick. If the deliveries were in an area close to the Complainant’s area, he would take the parcels but he only ever delivered parcels on behalf of the Respondent.

The Complainant denied that he was entitled to refuse to take parcels or refuse to work. He was not allowed to arrive at the depot and choose what route he was going to take or how many deliveries he was going to make on a particular day.

The Respondent provide me with comprehensive submissions on the 30th April 2024 and the 21st May 2024. These were also shared with the Complainant. The Respondent denied that the Complainant had an annual leave or public holiday entitlement on the basis that the Complainant was engaged under a contract for services and holidays and bank holidays were not included in the contract.

Direct Evidence of the Director

The Respondent’s Director gave evidence that the Complainant was a self-employed contractor with Parcel King. He carried out deliveries in Kells, Co. Meath. While the Complainant was assigned to Co. Meath the Respondent did not control the route. The Respondent would sort out the parcels to be delivered by area and the Complainant would collect the parcels for his area by 7:00 am. The Complainant would decide what route to take. When he arrived into work the Complainant would clock in and this would generate the invoice. At the end of the week the Complainant's supervisor would advise the Director of the number of days the Complainant worked that week.

The Complainant was furnished with a company van. The insurance and motor tax on the van were paid for by the Respondent. The Complainant was paid €120 per day irrespective of the hours worked by him however according to the Director he usually finished between 11am and 12pm.

The Director stated that he did not control where the Complainant went or how he did his job. He worked when he wanted to and did the hours he wanted to. According to the Director on occasion the Complainant had appointments with his wife and his daughter and he would drive them in the company van during working hours.

Cross-Examination of the Director

Under cross-examination the Director accepted that the Complainant reported to a supervisor and that he submitted petrol and toll receipts to the supervisor and that these expenses were reimbursed to him by the Respondent. It was also accepted that the Complainant wore a Hi-Viz vest with the Respondent’s name on the back.

In making these findings, I have considered the documentation submitted by the parties and the oral evidence adduced and the submissions made at the hearings summarised above.

Preliminary Issue: Jurisdiction to hear the complaint under the Organisation of Working Time Act 1997

Before considering the Respondent’s preliminary issue and the substantive issue in this case, I first must address a preliminary issue regarding the jurisdiction of the WRC to hear a complaint in respect of annual leave and public holidays entitlement. The complaint was submitted to the WRC on 12th January 2024 under the Terms of Employment (Information) Act 1994. In the space provided in the complaint form for complainants to expand on their complaints, the Complainant set out that he did not “receive any benefits such as holidays, bank holidays, overtime and etc.”

I note the finding of the High Court in County Louth VEC v. Equality Tribunal [2009] IEHC 370 that:

“I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.”

I also note the dicta of MacMenimin J. in the Supreme Court in Louth/Meath ETB v. Equality Tribunal [2016] IESC 40:

“It goes without saying, first, that the duty of the Equality Officer is both statutory, and, ultimately, delimited by constitutional considerations. As part of fair procedures, it is necessary that all parties be aware, in a timely way, of the case which they must meet. Consequently, it would be wrong, were a situation to evolve in this investigation, where one or other of the parties was under a misapprehension of precisely the range of legitimate inquiry. Second, it is hardly necessary to reiterate that it is not possible for any tribunal, upon which a particular jurisdiction has been conferred by statute, to extend or confine the boundaries of that jurisdiction by an erroneous determination of fact (see State (Attorney General) v. Durkan [1964] I.R. 279, approved in Killeen v. DPP [1998] ILRM 1). There may also be circumstances in which a tribunal, although holding jurisdiction to enter upon an investigation or inquiry, may render its decision a nullity by, for example, a denial of fair procedures.”

I further note the dicta of Charleton J. in Galway-Mayo Institute of Technology v. Employment Appeals Tribunal [2007] IEHC 210:

“It follows from the foregoing that a judicial or quasi-judicial tribunal is not entitled to invoke a statutory remedy which no one has sought and in respect of which no one is on notice. For the purpose of fulfilling the requirements of natural justice, however, I would have thought that if any such tribunal does have jurisdiction to give a remedy under a particular Act, then if this remedy is sought in an originating document, for instance by ticking a box giving a choice of remedies, or if it is orally sought to in the course of the hearing, such a tribunal is entitled to make a choice in favour of it. If that happens, parties have to be taken as being aware that in the event that a decision goes a particular way the tribunal may look to a remedy claimed. In that regard, I would regard a written claim or an oral assertion seeking a particular remedy as being sufficient for the due administration of constitutional justice provided the tribunal has jurisdiction in respect of it. If remedies are complex, and a tribunal has rules as to notice in the form of simple originating documents, then it should abide by its own procedures or consider the grant of an adjournment to a genuinely surprised party.”

Applying these dicta, I note that the WRC complaint form is not a statutory form. It is intended to set out the outline of a complaint or complaints, so that, and in line with fair procedures, the Respondent knows the issues it faces. In this case, prior to referring the complainant to the WRC the Complainant sent a WhatsApp message to the Director on the 11th January 2024 wherein he sought payment in respect of annual leave and public holiday entitlements and the issue of a possible breach of the Organisation of Working Time Act 1997 (hereinafter referred to as “the 1997 Act”) is clearly raised in the WRC complaint form. The complaint form was copied to the Respondent.  When the matter came before the WRC on the 13th May 2024 the Complainant confirmed that his complaint related to annual leave entitlement and public holidays entitlement. The Director did not arrive at the commencement of the hearing and an adjournment was granted in order to afford the Respondent’s representative the opportunity to take instructions in relation to a claim under the 1997 Act. In advance of the hearing on the 29th November 2024 the Respondent provided me with further written submissions.     

Taking into consideration the documentation furnished to the WRC I am satisfied that the general nature of the complaint has remained the same and that the Respondent was on notice that the Complainant was claiming that he did not receive his annual leave and public holiday entitlements.

I find that in all the circumstances of the instant case I have jurisdiction to investigate this complaint under the 1997 Act. The decision, therefore, reflects that that this is a complaint seeking redress pursuant to the 1997 Act.  

Preliminary Issue: Employment Status

By way of preliminary issue the Respondent submitted that the Complainant was a self-employed operative engaged under a contract for services and therefore was not covered by the 1997 Act.  

The evidence of the Complainant and the Director on behalf of the Respondent is set out above under the headings “Summary of the Complainant’s Case” and “Summary of the Respondent’s case”.

I have had regard to the Code of Practice on Determining Employment Status and the typical characteristics of an employee and self-employment referred to by the Complainant in his written submissions.

The Complainant gave evidence that he worked full time for the Respondent. He was not registered as being self-employed with the Revenue Commissioners and that he never filed a tax return. His normal working week was Monday to Friday. He did not work for or provide delivery services to any other business. He was assigned to the Kells, Co. Meath area by the Respondent and he reported to and took direction from a Parcel King supervisor. The Complainant supplied only labour and he could not and did not contract the work. The Complainant had a daily salary of €120.00. He did not submit invoices to the Respondent. The Director gave evidence that the Complainant clocked in on a daily basis and the Complainant’s supervisor confirmed to the Director at the end of the week the number of days worked by the Complainant. The Respondent’s system generated the invoices. I note from my examination of the invoices that they were on the Respondent’s headed paper.

The Complainant did not supply his own materials or equipment for the job. The Respondent provided him with a company van and the Respondent was responsible for the insurance and motor tax. The Complainant wore a Respondent company Hi-Viz vest.

There was no evidence before me that the Complainant owned his own business or that he was exposed to any financial risk. He did not assume responsibility for the investment in and management of work activities.

In relations to the issue of control, taking into consideration the evidence of the Complainant and the Director set out above I resolve the conflict in evidence in favour of the Complainant and find that he did not have control over what was done, how it was done, where it was done or whether the Complainant or another person did the work. I note the Complainant’s evidence that each working day he would meet his Parcel King supervisor at the depot, the supervisor would tell him what to do and how many deliveries he had each day. His morning routine was always the same and was dictated by the Respondent: he would have at the depot before 7am, he met his supervisor, he would then go to the bay and take the deliveries for Kells, Co. Meath, he would input the Eircodes into a Parcel King App (and later a more up to date App) in order for his route to be determined, he would load the van and he would do the deliveries. He worked primarily in the Kells area so all parcels to be delivered in that area were given to him. The Complainant explained that Eircodes were inputted into the App and the App determined the most fuel-efficient route to take. He stated that urgent parcels could not be delivered after 10:00 am so if he had an urgent parcel or parcels to deliver they had to be delivered first and before 10:00 am. Further, I note that the Complainant reported everything to his supervisor and all petrol and toll receipts were given to his supervisor. If the Complainant was going to be late or absent from work due to illness he had to contact his supervisor.

The Complainant was not free to hire other people to do the deliveries on his behalf and I did not find the Director’s evidence that the Complainant worked on multiple occasions with family members in the van or that he was assisted by family members in carrying out his duties on behalf the Respondent as credible.

While it was the Director’s evidence that the Complainant had the opportunity to benefit from sound management in the scheduling and performance of his duties and that he could control the hours of work in fulfilling the job obligations I found the Complainant’s evidence that while he was able to finish early “a few times” it was very rare for him to be able to finish work early because of the number of deliveries he had each day  to be credible and I do not accept that the Complainant had sufficient control over the hours of work in fulfilling his job obligations.

I have also had regard to the case of The Revenue Commissioners v. Karshan (Midlands) Ltd trading as Domino’s Pizza [2023] IESC 24, wherein the Supreme Court set out a five question framework to guide any assessment of employment status. They are set out below and I have included a note under each point containing a  conclusion or finding based on the evidence in this case:

(i) Does the contract involve the exchange of wage or other remuneration for work?

In the instant case the answer is in the affirmative.

(ii) 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?

In the instant case the answer is affirmative.

(iii) 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?

Having heard the evidence of the Complainant and the Respondent and as set out above I am satisfied that the Respondent employer exercised sufficient control over the putative employee, the Complainant, to render the agreement one that is capable of being an employment agreement.

(iv) 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.

Having found that the three requirements specified by the Supreme Court were satisfied by the nature of the actual practical relationship which existed between the parties and allowing that the service provided by the Complainant, the putative employee, was solely for the benefit of the Respondent, the putative employer, I find that the tests set by the Supreme Court in Karshan have been met, finding that no alternative  form of contract existed which could adequately  describe the nature of this employment relationship other than a contract of employment.

(v) 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.

There was no evidence presented to me of anything in the particular legislative regime under consideration that requires an adjustment or supplement to any of the foregoing.   

I found the Complainant to be a credible witness and I found his evidence to be cogent and compelling. I found the evidence of the Respondent to be lacking in credibility and not plausible in the circumstances. On the balance of probabilities, I find that the Complainant was an employee and that the Respondent was the employer for the purposes of the 1997 Act.

Substantive Issue

The Complainant stated that he did not receive any of his annual leave entitlements or any payment for public holidays over the course of his employment. The complaint was referred to the WRC on the 12th January 2024.

The 1997 Act contains a number of provisions in relation to annual leave and public holidays.

Annual Leave

Section 19 of the 1997 Act makes provision for the entitlement to annual leave as follows:

19. Entitlement to annual leave

(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

The leave year is defined in section 2 of the 1997 Act as:

“leave year” means a year beginning on any 1st day of April.

The Complainant worked for the Respondent in the leave year 1st April 2023 to 31st March 2024, his employment having commenced on the 18th July 2023 and ending on the 4th January 2024 and I am satisfied that he accrued annual leave entitlement during that period. 

Section 23 of the 1997 Act provides for compensation on cesser of employment as follows:

23. Compensation on cesser of employment

(1)(a)Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or he would have received had he or she been granted that annual leave.

The Complainant claimed to be entitled to 10 days annual leave and that he was not compensated for the loss of that annual leave when his employment ended on the 4th January 2024. The Respondent submitted that annual leave was not included in the contract.

I found the Complainant to be a credible witness and I find that this complaint is well-founded and I direct the Respondent to pay to the Complainant compensation in the sum of €1,200 in respect of annual leave entitlement.

Public Holidays

An employee’s entitlement to public holidays is provided for in section 21 of the 1997 Act as follows:

21.— (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

Entitlement to public holidays is separate to the entitlement to annual leave.  It was held by the High Court in Royal Liver Assurance v. Macken [2002] 4 IR 427 that where the employer fails to comply with the provisions of section 21 of the 1997 Act the date of contravention is the date of the public holiday itself. I note that during the cognisable period there were five public holidays, namely the 7th August 2023, 30th October 2023, 25th December 2023, 26th December 2023, 1st July 2024. The Respondent submitted that bank holiday entitlement was not included in the contract.

I found the Complainant to be a credible witness and I find that this complaint is well-founded and I order the Respondent to pay to the Complainant compensation in the sum of €600 in respect of unpaid public holidays.

I decide that this complaint is well-founded and order the Respondent to pay to the Complainant compensation of €1,200 for the loss of annual leave and compensation of €600 for the unpaid public holidays, a total of €1,800 in respect of the loss of the Complainant’s statutory entitlements and as compensation for the infringement of his rights.