Complainant

Respondent

Parties

Ray  Cawley

Cork County Council

Representatives

  Self-Represented

 Donnchadh McCarthy BL instructed by Julia Dineen Cork County Council Law Department

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-00066422-001

01/10/2024

The Complainant submits he was engaged as an Events Management Consultant to the inaugural Mallow International Garden Festival in May 1999, by then County Manager of Cork County Council. The Complainant asserts that the fee agreed was £IR10,000, which was never paid. The Complainant submits he has unsuccessfully sought payment from the Respondent over 25 years and now believes it is a valid complaint under the Payment of Wages Act 1991 (“the 1991 Act”).

The Respondent asserts that the complaint is a misconceived, frivolous, and vexatious complaint that should be dismissed because it is statute barred on two grounds:

1.      The Complaint is completely out of time.

2.      The Complainant was never an employee of the Respondent.

Out-of-Time:

The Respondent submits the complaint relates to matters in 1999 so that the maximum 1-year extended period for the Complainant to complain of a contravention of the 1991 Act has long passed. The Respondent asserts the Adjudication Officer is therefore precluded from entertaining the complaint under Section 41(6) and (8) of the Workplace Relations Act 2015 (“the 2015 Act”) and the Respondent submits it should be dismissed for this reason.

 Employment Status:

The Respondent quoted from Section 1 of the 1991 Act on the definition of “contract of employment” and contends that it is only those on contracts of employment who can take a case under the 1991 Act. The Respondent points to the Complainant’s admission on the complaint form that he was a “Self Employed Event Management Consultant.” The Respondent asserts that as the Complainant could not show that he was entitled to wages as an employee then the Complainant can have no complaint under section 5 of the 1991 Act.

Case for Dismissal of Complainant:

The Respondent referred to section 42(1) of the 2015 Act where an adjudication officer may dismiss a complaint if it is frivolous or vexatious. The Complainant opened Beades v Ireland [2018] IR 582 where the terms “frivolous and vexatious” are discussed.

The Respondent argues that the Complainant has failed to establish his entitlement to bring this Complaint, that it is out of time, it is frivolous and vexatious and does not disclose any breach of the 1991 Act or any matter within the jurisdiction of the WRC and therefore this complaint should be dismissed.

Out-of-Time:

The Complainant argues that the time spent on his attempts at vindicating his right to get paid the outstanding sum, right up to the date of the hearing, should be classed as a continual period of non-payment and therefore the claim should be classed as within time.

Employment Status:

The Complainant acknowledged that he was never formally an employee; however, elements of an employment relationship existed, such as his acting under the Respondent’s direction during the relevant period in 1999.

Out-of -Time Objection:

The Workplace Relations Act, 2015 (“the 2015 Act”), Section 41 provides at subsection:

 (6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates…

 (8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The Complainant asserts that the 25 years of his attempts to seek payment from the Respondent for an event that happened in 1999, should be considered as a continual period which should allow him to bring a case under the 1991 Act. On the Complainant’s form submitted to the WRC, the Complainant, in response to the question “On what date should you have received the payment?” answered “on my request in June 1999.” The Complaint was registered as having been received by the WRC on 2 October 2024. The Complainant’s substantive case is for an alleged single payment due to him from the Respondent. I am satisfied that in line with section 41(6) of the 2015 that the date of contravention was a date in June 1999 therefore I deem that the complaint is out of time.

Employment Status:

Section 1 of the Payment of Wages Act 1991 defines a contract of employment as

 “a contract of service or of apprenticeship, and any other contract whereby an individual agrees with another person to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract) whose status by virtue of the contract is not that of a client or customer of any profession or business undertaking carried on by the individual, and the person who is liable to pay the wages of the individual in respect of the work or service shall be deemed for the purposes of this Act to be his employer, whether the contract is express or implied and if express, whether it is oral or in writing;”

The term “employer” is defined” … as in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;”

The Complainant, by his own admission, accepted that he was not an employee but described himself on the complaint form as a “Self Employed Event Management Consultant”. Self-employed consultants, being independent contractors, do not fall under the protection of the 1991 Act.

Section 42(1) of the Workplace Relations Act 2015 provides that:

“An adjudication officer may at any time, dismiss a complaint or dispute referred to him or her under section 41 if he or she is of the opinion that it is frivolous or vexatious.”

The High Court in the case opened by the Respondent, Patrick Kelly v The Information Commissioner [2014] IEHC 479, considered the terms “frivolous or vexatious”:

“As a matter of Irish law, the term “frivolous or vexatious” does not, as noted by Birmingham J. in Nowak, necessarily carry any pejorative connotations but is more concerned with the situation where the litigation (or, in this instance, application) can be described as futile, misconceived, or bound to fail.

For the reasons outlined above, I find the complaint was significantly out of time and frivolous. I am satisfied that it does not disclose any breach of the 1991 Act or any matter within the jurisdiction of the WRC. Accordingly, I dismiss the complaint.

Based on the reasons outlined above, I decide the complaint was wholly out of time, frivolous and therefore bound to fail. Consequently, the complaint is dismissed.

Payment of Wages Act 1991.Dismissal of Complaint.