ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00041649
Parties:
| Complainant | Respondent |
Parties | Mahmoud Youssef | Bpi-Unitek Ireland Limited |
Representatives |
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Complaint(s):
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-00052253-001 | 15/08/2022 |
Date of Adjudication Hearing: 18/04/2023
Workplace Relations Commission Adjudication Officer: Caroline Reidy
Procedure:
In accordance with Section 6 of the Payment of Wages Act 1991 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
Mr Youssef attended the hearing remotely as he is based in Cairo, Egypt. I asked the Complainant to stop me at any stage if he didn’t understand me or had any queries. The Respondent did not attend the hearing however I am satisfied that they were notified correctly as follows: - Notification letter of complaint/dispute was sent via post to the Respondent, Bpi-unitek Ireland Limited on 1 November 2022. On 2 March 2023 WRC sent letter to Respondent outlining details of date of hearing on 18 April. |
Summary of Complainant’s Case:
The Complainant, Mr Youssef stated that he received $3,500 dollars per month for work he did for the Respondent. He stated he had not received the payment he should have received on the 1 December 2021 as his contract was up to 17 November 2021. He stated he worked with them almost 2 months that meant he should receive $7,000 dollars. The contract he said was not cancelled or terminated until now. He stated it is still a 9-month running contract so that means the total pay now is $27,000 dollars. The Complainant confirmed he received the Contractors agreement by email which was attached to his complaint form from the Company on 4 October 2021. He confirmed there was an email from the company saying they were taking him on as a consultant initially. He stated he worked up to 17 December 2021 and he stated he was taken off company communication then. He did not get paid from the company. At the hearing he stated he did not realise a contractor was not an employee. I asked if the Complainant had anything else to add and he said no. |
Summary of Respondent’s Case:
The Respondent did not attend at the hearing. |
Findings and Conclusions:
In considering my findings and conclusions I have considered the definition of Wages in Payment of Wages Act 1991 “wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including— (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and (b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice: Provided however that the following payments shall not be regarded as wages for the purposes of this definition: (i) any payment in respect of expenses incurred by the employee in carrying out his employment, (ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office, (iii) any payment referable to the employee's redundancy, (iv) any payment to the employee otherwise than in his capacity as an employee, (v) any payment in kind or benefit in kind. For this legislation to apply the Complainant must be an employee of the Company. In this case the Complainant received an email explaining he was being engaged as a consultant contractor. He received a contractor’s agreement with his terms outlined. In practice he was also a contractor based on his evidence.
Therefore, the Complainant is not an employee and I do not find a breach of the Payment of Wages Act and therefore, the claim is not upheld.
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Decision:
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 under that Act.
I do not find a breach of the Payment of Wages Act therefore, the claim is not upheld.
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Dated: 12th October 2023
Workplace Relations Commission Adjudication Officer: Caroline Reidy
Key Words:
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