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Terms Enforced Regardless of Unsigned Contract

FACTS: The Complainant took a Payment of Wages claim for 11 weeks worked. The Respondent argued that the Complainant was not an employee during this period. The Complainant worked for the Respondent Company for 11 weeks, where he was provided with his own office, official email address and asked to act as the CEO for the Respondent for an annual remuneration of €150,000.00. The Complainant was invited by Mr. BK from the Respondent Company to get the feel of how the company worked and based on this invitation, the Complainant had worked for the Respondent from 11th December 2018. During the period of Christmas, Mr. BK advised the Complainant that the contract was being drawn up. However, the final contract presented to the Complainant was for a fixed period of 1 year, which was never discussed by the Respondent and was not signed by the employee upon receipt. In order to maximise his income, the Complainant then proposed that he be treated as consultant rather than an employee, which was under discussion. There were no written correspondence exchanged to confirm the arrangement between the Complainant and the Respondent.  

FINDINGS: The Respondent argued that the contract of employment provided to the Complainant was not signed, hence he cannot be treated as an employee and avail any employee entitlements or rights. Noting that the Complainant was at the Respondent’s place of business for a period of 11 weeks, from 11th December to 27th February, carrying out his duties and representing himself as the CEO of the Respondent Company the Adjudicating Officer (AO) dismissed the claim of the Respondent that the Complainant’s employment status was somewhat ‘floating’. The AO therefore held that the Complainant’s status was as per the initial agreed terms, i.e., the Complainant being a salaried employee on an annual salary of €150,000. This was regardless of other terms not having been agreed and regardless of the fact that the Complainant  looked for other options to enhance his earnings.

The AO held that the complaint was well founded and that the Complainant was entitled to payment for the 11 weeks of salary, amounting to €32,300.00.

NOTE TO EMPLOYERS: It should be noted that in the absence of a signed employment contract, the Adjudication officers rely on the terms which by the parties’ actions cannot be in dispute between the employer and the employee. Therefore, any changes or clarifications of an employment contract whether under discussion or agreed should at all times be reflected in clearly in writing  and communicated to the employee to reflect the accurate status of same.

https://www.workplacerelations.ie/en/cases/2019/september/adj-00021572.html

23rd September 2019

Anne O’Connell Solicitors

Fitzwilliam Hall

Fitzwilliam Place

Dublin 2.

www.aocsolicitors.ie

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