Complainant

Respondent

Parties

Catalin Valentin  Deacu

Donnelly Engineering Services Limited, trading as Deco

Complainant

Respondent

Anonymised Parties

Representatives

  Self

 Lorraine Monaghan

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00065991-001

15/09/2024

The Complainant submitted a complaint to the Workplace Relations Commission on 15/09/2024 seeking adjudication by the WRC under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012.  He is seeking payment for work done in Paris between 19/02/2024 and 06/04/2024.  He submits that as an employee he received no written details about his work and was not paid overtime or annual leave.  He is also disputing a deduction made from his final payment.  The respondent submits that the Complainant was never an employee and was paid an hourly rate of €28.00 as a contractor for all verified hours.  The deduction made was for damage done to accommodation which the Respondent had paid for.

The Complainant gave evidence on affirmation.  He gave evidence that he was employed by the Respondent from 19/02/2024 to 06/04/1014 along with two other colleagues.  He was working on a project in France.  He stated that during this time he did not receive a work contract,  pay slips and his employment was not registered with Revenue.  He also gave evidence that he was not paid overtime or annual leave.  On his final week the Respondent made a deduction from his pay which he stated was not correct or notified to him.  It is the Complainant’s position that he was an employee of the Respondent and he discussed his contract with a Ms A.  She undertook to send him a contract but he never received it.   The Complainant also gave evidence that he worked on the same project in June 2024 for a different company and he was given a contract of employment.  There were no issues with this company.  The Complainant refutes the Respondent’s submission that he was an independent contractor.

The Complainant stated that the Respondent did not provide any evidence that he could be regarded as an independent contractor.

There were no questions for the Complainant by way of cross examination.

Ms Lorraine Monaghan gave evidence on affirmation on behalf of the Respondent.   Ms Monaghan outlined that she is the nominated secretary of the Respondent company and she also is the Financial Controller. 

She confirmed that the Complainant and other individuals working for them were sub-contractors and not employees.  They were based in Romania and the Respondent paid for their flights and accommodation in Paris.  These were return flights from Bucharest to Paris and the Complainant never worked in Ireland for the Respondent. The main contractor on the site (Contractor A) subcontracted work to another contractor (Contractor B) who in turn contracted the work to the Respondent (Contractor C) who then contracted the work to the Complainant and other individuals for a six-week period. 

The Complainant and his colleagues were required to supply their own tools and anything else required for their work.  They agreed to a rate of pay of €28.00 per hours and have their flights, accommodation and transport costs paid.  The Complainant was paid for all hours worked once these were verified and the Respondent provided the hearing with a printout of those hours.  The Complainant and his colleagues were deducted a sum of money for damages done to the accommodation provided and they were properly notified of this.  This was the only deduction made.  There were no deductions made for income tax or any other deduction.

Ms Monaghan stated that as the Complainant was never an employee no contract of employment could be issued.  He was also not paid for public holidays or annual leave as he was not an employee.  The agreed rate was €28.00 per hour for each verified hour and paid in arrears.

There were no questions for Ms Monaghan by way of cross examination.

The Complainant in this case is seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012.

I have been requested to make a decision in this complaint and to decide whether any contravention of Regulations 5,8,9, 10, 11 or 12 of SI 306/2012 has occurred during the course of the Complainants short duration of employment from 19/02/2024 until 06/04/2024.

In reaching my decision, I have considered the written correspondence sent by both parties to the WRC and the Complainant’s and Respondents evidence at hearing.

My jurisdiction rests in Regulation 18 of  European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 (Consolidated)S.I. No. 36 of 2012:

“18. Decision of adjudication officer under section 41 of Workplace Relations Act 2015

A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of Regulation 5, 8, 9, 10, 11 or 12 shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the provisions of these Regulations that have been contravened, or

(c) require the employer to pay the mobile worker compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 104 weeks' remuneration in respect of the mobile worker's employment (calculated in accordance with [regulations] under section 17 of the Unfair Dismissals Act 1977).”

Where an Employer of a Mobile Worker is described as:

“employer”, in relation to a mobile worker, means the person with whom the mobile worker has entered into, or for whom the mobile worker works under (or, where the employment has ceased, entered into or worked under) a contract of employment, subject to the qualification that the person who under a contract of employment referred to in subparagraph (b) of the definition of “contract of employment” is liable to pay the wages of the worker concerned in respect of the work or service concerned shall be deemed to be the individual's employer;

“employment” in relation to a mobile worker, means employment under his or her contract of employment, and “employed” shall be construed accordingly.

Regulation 3 places the scope of Mobile Workers, as mobile workers who are employed by or who do work for one or more undertakings within the Member States.

The Complainant has not prepared the requested outline submission under the Regulations SI /36, 2012.

I must now accept the evidence of the Respondent that he was not employed as a Mobile Worker or as an employee for those days from 19/02/2024 until 06/04/2024.

I must now find that he does not possess the standing (locus standi,) to proceed in this complaint.

Having considered the submissions and evidence adduced at the hearing it is clear to me that the relationship between the Complainant and the Respondent was not that of an employer/employee relationship.  The Complainant clearly had a contract for services with the Respondent.

I find that the Complainant was not an employed by the Respondent as a Mobile Worker or as an employee for those days from 19/02/2024 until 06/04/2024.  I find that this complaint is not well founded.

Contract of employment.  Contractor.