Complainant

Respondent

Parties

Zselyke  Nagy

Peroptyx, Innovation House

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-represented

Jack O'Connor Eversheds Sutherland LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00066408-001

01/10/2024

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-00066408-002

01/10/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and a witness for the respondent (the managing director) undertook to give their evidence under affirmation.

A  preliminary matter the respondent submitted that the complainant was not an employee of the company, had a contract as an independent contractor and furthermore, never provided services under that contract.

The complainant gave evidence that she signed the contract that the respondent submitted but never provided services to the respondent.

The respondent submitted that the complainant was not an employee and had signed a contract to provide services as an independent contractor.  However she never provided services under the contract.  The respondent submitted that the complainant could not seek any relief under the Terms of Employment (Information ) Act as she was not an employee of the respondent at any time.

The complainant took two complaints the first refers to a complaint under the Terms of Employment (Information) Act the second under the European Road Transport Regulations.

CA-00066408-001 Terms of Employment (Information) Act

In her evidence the complainant outlined that she signed the contract to work with the respondent but that she had issues with the level of payment that they were going to provide. She confirmed that she never provided any services to the respondent under the contract. She also confirmed that she was not involved in the road transport industry.

The respondent submitted that the complainant did not work for the respondent as an employee and never provided any services for the respondent either as an employee nor as a contractor. The respondent submitted that as the complainant is not an employee she is not entitled to take a complaint under the Act.  The Terms of Employment (Information) Act defines an employee in the following terms:

“employee” means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of this Act, a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956, shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014), a harbour authority, a health board or an education and training board shall be deemed to be an employee employed by the authority or board, as the case may be;

It also outlines the following

(1A) An employee shall not be entitled to present a complaint under Part 4 of the Workplace Relations Act 2015 in respect of a contravention of section 3(1A)—

(a) unless the employee has been in the continuous service of the employer for more than 1 month,

The complainant stated that the contract of employment allowed her to work for the respondent.  The respondent submitted that the contract was to provide services as an independent contractor.  The complainant confirmed that she did not undertake any work for the respondent.  Having considered the written and oral evidence put forward by the parties, the complainant has not established to my satisfaction that she is an employee.  Therefore, I find that she has no standing to take a complaint under the Act.

CA-00066408-002 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

The complainant confirmed that she was not involved in the road transport industry.

As the complainant was not involved in the Road Transport Sector, I find that this complaint is misconceived.

CA-00066408-001 Terms of Employment (Information) Act

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant has not established that she is an employee and has no standing to take a complaint under the Act.

CA-00066408-002 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

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that this complaint is misconceived.

Terms of Employment Information – not an employee – no standing to take a complaint – Road Transport Regulations – not involved in the industry - misconceived