Case Number: ADJ-00000183. Workplace Relations Commission.

• Docket Number: ADJ-00000183
• Date: 01 March 2016
• Year: 2016
• Court: Workplace Relations Commission
• Parties: An Employee -v- An Employer

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

ON THE DAY THAT MY JOB WAS MADE REDUNDANT I WAS DUE € 617.37 IN OUTSTANDING WAGES. I INFORMED MY PREVIOUS EMPLOYER OF THAT FACT IN WRITING ON OCTOBER 6th AND AS OF TODAYS DATE I HAVE RECEIVED NO COMMUNICATIONS AT ALL FROM THE EMPLOYER.

BASED ON THE NUMBER OF YEARS OF MY EMPLOYMENT FROM MAY 2003 TO OCTOBER 2015 I CALCULATE THAT I AM ENTITLED TO 25.8 WEEKS PAY @ € 90 PER WEEK TOTALLING € 2,322.00

I WAS NEVER OFFER HOLIDAY PAY AT ANY TIME DURING MY 12 YEARS OF EMPLOYMENT BUT IT WAS ALWAYS STRESSED TO ME TO MAKE SURE EVERYBODY ELSE ON THE PAYROLL GOT THEIR HOLIDAY PAY AND THIS WAS NEVER OFFERED TO ME AND PERHAPS I SHOULD HAVE DEMANDED THAT A LONG TIME BEFORE NOW.

The Complainant informed the Hearing that he commenced working for the Respondent on 16 May 2003 as a Bookkeeper on a rate per hour basis. While the initial rate would have been lower, the hourly rate for the majority of the period under review was €30 ph.

For the first seven years, the payment of monies owed to the Complainant took place on an ad hoc basis with payment being made every few weeks when the Complainant requested same from the Respondent. Payment was then made by cheque.

The Complainant stated that his payment arrangements changed in March 2003 when a weekly standing order was set up for €90, representing payment for three hours work per week. [Evidence was presented to the Hearing showing the standing order payment commencing on 2 March 2010 and continuing uninterrupted until 16 October 2015, when the final payment was paid]

In addition, the Complainant stated that he was put on the company payroll at the same time as the standing order arrangement was put in place and as a result, was returned on the employers P35 form on a weekly basis from then on. The Complainant claimed this confirmed his status as a an employee of the company.

Following the introduction of the standing order payment arrangement in 2010, shortfalls in payment emerged when the Respondent worked hours in excess of the three per week which were reflected in the €90 pw payment being made by standing order. The Respondent stated that on three occasions (2010, 2011 and 2014) he approached the Respondent seeking payment for the shortfall in the amounts of €645, €350 and €750 respectively. These amounts were duly paid, albeit in several tranches in some cases due to cash flow issues.

In September 2013 the company had an inspection from NERA following which written Statements of Terms of Employment were produced for all employees, including the Respondent. It was confirmed to the Hearing that these documents were completed by the Respondent, in his role as bookkeeper, and brought to one of the directors of the company to have signed.

The Complainant stated that he received a telephone call from Ms McHugh on the afternoon of 24 September 2015 informing him that the proprietors were withdrawing from the business and were leasing the premises. The Complainant was requested by Ms McHugh to prepare P45s for all staff and to ensure all monies due, including holiday pay, was included in the final payments.

The Complainant further stated that he was not requested to include himself in this regard even though his position was also being dispensed with. According to the Complainant, he was the only member of the staff who met the service qualifications for redundancy purposes and should therefore have received his entitlements in this regard.

Respondent’s Submission and Presentation:

Contractual Status of the Respondent:

The Respondent claims that the Complainant is a freelance bookkeeper who is paid €90 per week for doing the accounts, including weekly payroll calculation and related Revenue calculations, for the business. Consequently, the Respondent contends that the Complainant was an independent contractor under a contract for service. In support of this contention the Respondent put forward the following:

• The Complainant was responsible for paying all his own taxes as a self-employed person. In this regard the Respondent stated that they were unaware of the fact that the Complainant had registered himself as an employee by including himself on P35 list from March 2010 onwards. According to the Respondent this placed them in a position where they may be liable for his taxes.

• The Complainant never sought permission to take annual leave. He merely informed the Respondent when he was going away.

• The Complainant worked as a bookkeeper in a number of other businesses in the area at the same time as he worked with the Respondent.

• The Complainant had keys to the Respondent’s premises and could come and go as he pleased and was left to his own devices to carry out the bookkeeping for the Respondent.

• The Respondent did not exercise the normal level of control over the Complainant as they would with an employee.

Taking all of the above into consideration, the Respondent contends that the Complainant operated on the basis of a contract for services and not a...