ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00054753

Parties:

Complaint:

Date of Adjudication Hearing:  14/03/2025

Workplace Relations Commission Adjudication Officer:  Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 6 of the Payment of Wages Act, 1991following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.

The required Affirmation / Oath was administered to all witnesses present. The legal perils of committing Perjury was explained to all parties.

The issue of anonymisation in the published finding of the WRC was considered but not deemed necessary.

Background:

1:        Opening Legal Issue

1:1        introduction

Employment Status of the Complainant – Employee or Freelance Contractor.

This complaint is taken under the Payment of Wages Act,1991

It is generally accepted that the essential preliminary requirement of a sustainable Complaint under this Act is a Contract OF Service.

Section 1 of the payment of Wages Act,1991 refers.

1.—(1) In this Act—

"cash" means cash that is legal tender;

"contract of employment" means—

(a) a contract of service or of apprenticeship, and

(b) 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;

["contract worker" has the meaning assigned to it in section 4F;]

(Section 4F refers to the distribution of Tips and Gratuities and the categories of employees eligible.)

The entire area was extensively examined by the Irish Supreme Court in Revenue Commissioners v Karshan(Midlands) Ltd t/a Domino’s Pizza.  IE [2023] IESC 24.

A range of “Tests” were suggested by the Supreme Court and extensive case law was examined.

The main elements of these Test are

• Mutuality of Obligation
• Control
• Parties sown view of the Relationship
• Elements of Exclusive Personal Service/ Right to Delegate.

To examine these Tests properly a review of the available presented Evidence is required.  The Supreme Court observed that there was no, one size fits all, approach possible in these types of cases.

1:2           Review of the Evidence.

1:2:1        Complainant arguments

The complainant argued that she was due to be paid for Unpaid Invoices. She had always operated on the basis of invoices to the Respondent for work undertaken in arrange of European locations -essentially arranging ERASMUS and or School Palcements.

The question of her exact Legal Employment Status was never to the forefront of her arguments. She had accepted a “Freelance Contract” albeit one she had heavily amended regarding Confidentiality and Non-Compete clauses.

1:2:2      Respondent arguments

The Respondent pointed to the Freelance Contract and presented same in evidence. The strong view was that the arrangement for years had been one of Independent Freelance contractors and the Agency. The Invoices in dispute had not been paid due to a dispute regarding the deletion of Clauses in the Contract, especially Non-Compete and Non-Solicitation Agreements by the Complainant.

The issue was heavily clouded by a major dispute regarding the operation of a new Competitor Agency being established by former Staff Members of the Respondent.

1:2:3       Adjudication discussions.

The “facts on the Ground” for a considerable period of time were those of Freelance Contractors and an Agency.  The nature of the work was spread across a number of European States.

Accepting the Supreme Court Test of,

Firstly , Mutuality of Obligation- ( explained generally as a requirement on an employer to provide Work and an obligation of an employee to carry out such work).This did not really apply – the Complainnat could accept or refuse work as offered – likewise the Agency could make work available or not to a worker depending on Geographic locations or other business reasons.

The Second test, that of Control (explained generally as a requirement that the Employer have a high degree of Control over how the Employee carries out their duties) could not realistically apply here. The Contractor accepted ERASMUS/ School facilitation work in a variety of European locations – how they carried out the work on a day-to-day basis was simply not possible to control from the Agency Headquartered in Ireland/UK.

The Third Test that of Parties own view of the relationship was clearly that of a Freelance Contract / Agency basis.

The Fourth Test of “Personal Service” (explained generally as a requirement that the employee devote themselves almost exclusively to the Employer) did not really apply here. The Complainant could easily take on extra work or Contacts in addition to the Respondent Agency. The often-asked question of Delegation of Duties was also relevant -there did not seem to be any general prohibition on the Contractor from delegating some tasks to other workers.

Other issues such as Taxation, Holiday Pay, Sick Pay, all indicative of a standard Employment Relationship, did not seem to apply. The Freelance Contract submitted makes this clear.

1:3         Adjudication conclusions.

Having reviewed all the evidence the Adjudication view is that this Complaint is not proper to the Payment of Wages Act, 1991. The Relationship is that of a Freelance and an Agency. It is not a Contract OF Service.

In reality this case is a Commercial dispute more appropriate to the Courts dealing with Commercial disputes.

As such it has to be deemed legally Not Well Founded for consideration under the Payment of Wages Act,1991.

The case as presented under the Payment of Wages Act ,1991 has to fail.

2:        Findings and Conclusions:

3:        Decision:

Section 41 of the Workplace Relations Act 2015 and 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 of the cited Acts.

CA: 00066678-001

The Complaint is Legally Not Well Founded.

There was no required Contact OF Service.

The Complaint fails.

Dated:   6th May 2025

Workplace Relations Commission Adjudication Officer:  Michael McEntee

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