Complainant

Respondent

Anonymised Parties

A Worker

A Company

Representatives

Tom O’Donnell BL

Barry O’Mahony BL

Act

Complaint 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-00061580-001

12/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00061580-002

12/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00061580-003

12/02/2024

In or around the end of October 2023, the complainant entered into a verbal agreement for the sale of fuel from his own yard for the respondent. Towards the end of December 2023, he attended a rehabilitation centre for alcohol addiction. Before he attended treatment, his brother phoned the local manager of the respondent and informed him that he did not want the complainant working from the yard. The local manager and senior manager met with the complainant on 18th December 2023 to end the working arrangement. It was later agreed that the complainant would continue working to the end of the year to wind up matters. The complaints are that he was not paid for 5-days accrued annual leave, and that he did not receive a contract with his terms and conditions of employment.

The respondent representative submitted a preliminary issue that it was a commercial arrangement, and the complainant was not an employee. Without prejudice to the preliminary issue, the respondent representative submitted that the complainant refused payment for the annual leave, and that he was not prejudiced in any way by not being issued with his terms of employment.

The complainant’s evidence is set out fully in ADJ-00052528.

On the accrued annual leave, the complainant submitted that he did not want to accept the payment as this is the advice he received at that time.

He was not issued with a contract of employment during his employment.  

The respondent raised a preliminary issue that the complainant was not an employee and was not employed under a contract of service. The respondent representative made a submission on the preliminary issue of employment status. Without prejudice to this, it was submitted that the complainant refused a payment for annual leave and that he was not prejudiced by not having his terms of employment set out as per the Act.

The senior manager testified that the reason no contract issued was because the relevant staff member who prepares contracts was on sick leave.

Preliminary Issue

Status of Employment

I have reviewed the submissions made by the legal representatives and the testimony given over the course of the hearing.

Respondent Case

The respondent case is that the complainant worked on a commercial/agency basis. He operated in business from his own yard before, during, and after the business arrangement with the respondent. There were prior discussions for the sale of the business to the respondent. Although there was no sale, the verbal agreement reached was that the complainant would be paid €20 euro per hour for a 40-hour week during the winter season. This arrangement included the use of the complainant’s yard. He worked his own hours and there were no strict arrangements on opening or closing. When the yard was closed, a sign was erected which stated the complainant’s name as the business. The nature of the working arrangements indicated a commercial relationship. The respondent representative submitted that the five-point test as outlined in Revenue Commissioners v. Karshan [2023] IESC 24, was relevant to establish the nature of the working relationship.

Complainant Case

The complainant’s case is there was a contract of service, and he was an employee. The evidence indicated this as he was put on the respondent’s payroll system. His payslips were put into evidence to show he paid tax as an employee. Some respondent communications indicated an acceptance that he was due holiday pay and was entitled to a contract. He sold the respondents materials and used the respondent’s card payment system. The respondent local manager collected the takings each day and the complainant did not engage in any other substantial business outside of this employment.

Since 1998 and the case of Henry Denny & Sons, there is considerable case law on the tests to be applied to determine whether a contract is one ‘of’ or ‘for’ service.

The test as per paragraph 281 of Karshan is as follows:

281.In the light of the foregoing, the question of whether a contract is one of service or for services should, having regard to the well-established case law, be resolved by reference to the following five questions:

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

(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?

(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?

(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.

(v) Finally, it should be determined whether there is anything in the legislative regime under consideration that requires the court to adjust or supplement any of the foregoing.

Based on the above test, and the facts of this case, I decide:

·       There was remuneration for the work carried out by the complainant.

·       The complainant carried out the work himself. The respondent was aware of cover arrangements on all but one occasion.

·       The respondent exercised sufficient control over the complainant for the three months the yard was used. The takings were collected daily.

Matters therefore turn to the 4th question:

·       The other factual matrix is that he was on payroll and paid tax. There is correspondence which accepted that he was owed for accrued annual leave and that a written contract should have issued. He always used the respondent’s card machine and sold their materials.

On the firth question, I see nothing in the legislative regime or in submissions that was relevant to adjust the foregoing.

For the reasons outlined, the complainant has met the test. I decide that he was an employee for the relevant period and was employed on an implied contract of service.

I will proceed with the substantive complaint.

CA-00061580-001-Complaint under Organisation of Working Time Act (Accrued Annual Leave)

Section 23 of the Organisation of Working Time Act 1997 refers to payments for loss of annual leave being due on the cessation of employment. Therefore, as the employment commenced on 25th September 2023 and ended on 23rd December 2023, the complainant representative submits that he had accrued 5 days leave.

The respondent representative submits that he was offered a payment in lieu of his holidays and he refused to accept a payment on 19th January 2024.

Finding

It is not easy to decipher exactly what annual leave the complainant had accrued when his employment was terminated. This is not helped by the absence of a contract and recorded working times. The correspondent put into evidence shows that the complainant refused a payment after his employment was terminated although it is not clear whether a specific amount was offered.

It is a concern that the issue of annual leave did not arise during the employment particularly from a health and safety perspective where workers have a right to statutory holidays.  

I declare the complaint is well founded. I require the employer to pay €800 gross to the employee. For clarity, this payment is earnings as it is in lieu of accrued annual leave.

CA-00061580-002- Complaint under Terms & Conditions of Employment (Contract of Employment)

The Act provides for the employer to issue to new employee’s statements of terms of employment. The respondent conceded at the hearing that a statement of terms of employment did not issue as prescribed under the Act, as the relevant person was on sick leave.

In accordance with Section 7 of the Act, I declare that the complaint is well founded.

As per Section 7 of the Act, there is provision to award compensation of such amount as the adjudicator considers just and equitable having regard to all the circumstances, but not exceeding 4 weeks’ remuneration.

The respondent representative submitted that the lack of a contract outlining terms and conditions did not prejudice the complainant in any way.

However, the following issues did arise-

·       What the pay per hour encompassed and whether it would be reviewed if the yard was not in use?

·       The start/finish times, holidays and notification of absences.

·       The procedures for payment for sick leave and submission of medical certificates.

The breach of the Act denied the complainant his statutory rights. The lack of clarity on his terms of employment was not helpful when issues did arise towards the end of his employment.

I order the employer pay to the employee compensation of €3,200 (equivalent of 4-weeks’ pay). This is redress of compensation for a breach of a statutory right and is not remuneration or arrears of remuneration.

CA-00061580-001-Complaint under Organisation of Working Time Act

I declare the complaint is well founded. I require the employer to pay €800 gross to the employee. For clarity, this payment is earnings as it is in lieu of accrued annual leave.

CA-00061580-002-Complaint under Terms of Employment Act

I order the employer pay to the employee compensation of €3,200 (equivalent of 4-weeks’ pay). This is redress of compensation for a breach of a statutory right and is not remuneration or arrears of remuneration.

CA-00061580-003-Complaint under Safety Health & Welfare (Penalisation)

This complaint was withdrawn.

Organisation of Working Time Act, Terms of Employment