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Friday 19 October 2018

Legal advice: 'I have been working night and day the local farmer since Christmas and I still haven’t been paid'

Our solicitor tackles this sensitive issue

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I know this might sound like a really stupid question and I’m a bit embarrassed writing it, but I don’t know what to do.

A local dairy farmer asked me in the pub at Christmas if I would help him out a few hours on his farm. I myself farm with my father, but it’s a drystock farm and I usually work contracting or with a local builder even now and then to earn some extra money.

But, I worked night and day the local farmer from Christmas until April and I still haven’t been paid.

It’s now June and some days I had been working 14 hours as it’s been busy calving.

When I asked him about getting paid he said he’d sort me out later, but that was early in February and I’d done five weeks at that point. Now I’m not even sure exactly how many days I’ve worked or what hours I’ve done.

It’s gone beyond a joke at this stage. I’d like to leave but I feel I’ll never see my money then. My father is friends with the man and says I should just stick it out and not get a reputation for being awkward or no one will employ me.

Thank you for your query. Often, farmers who engage casual labour during the busy season are under the impression that because that person is not with them on a permanent basis, then they are not an employee and therefore the farmer is not bound by employment legislation. This however is not the case.

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Revenue has established the Code of Practice for Determining Employment of Self-Employment Status of Individuals. It states that an individual would normally be an employee if he/she is:

  • Under the control of another person who directs how, when and where the work is to be carried out;
  • Supplies labour only;
  • Cannot subcontract the work;
  • Receives a fixed hourly/weekly/monthly wage;
  • Does not supply materials for the job;
  • Does not provide any equipment save small tools of the trade;
  • Works set hours or a given number of days in the week;
  • Works for one person.

Assuming you satisfy the majority of the above factors (save for the wage as you have not yet been paid), you are deemed to be an employee.

In that regard, the farmer would have to register you as an employee with Revenue and will have to deduct tax and PRSI from your income prior to giving it to you.

You say that you are farming with your father and usually work contracting or with a local builder every now and then to earn some extra money so you should clarify whether you are self-employed in those jobs or an employee.

In relation to payment, the National Minimum Wage Act 2000 and Regulations made thereunder, sets out the lowest average hourly rate that can be paid by an employer to an employee. It applies to all employees, full-time and part-time, temporary and casual, except for apprenticeships in certain areas and close relatives of the employer.

The current minimum wage from the 1 January 2018 for experienced adult employee is €9.55 per hour. An experienced adult employee is an employee who has employment of any kind in any 2 years over the age of 18. There are also sub-minimum rates for those under 18.

If the farmer refuses to pay you, then you can make a complaint to the Workplace Relations Commission. You should ascertain as soon as possible whether the farmer is actually going to pay you for the work done as you can only claim payment for 6 months wages and you have not been paid since January.

You should consult your solicitor immediately as there are time limits within which you must refer a complaint to the Workplace Relations Commission. It is difficult to get an extension of time to lodge a complaint if you lodge it outside of the time limit.

You also say in your query that some days you have been working 14 hour days as it’s been busy calving. You also say that you are not even sure how many days you have worked or what you have done.

The Organisation of Working Time Act 1997, and Regulations made thereunder, oblige employers to keep detailed records of start and finishing times, hours worked each and each week, for each employee. These records must be kept for three years. The 1997 Act also sets out working and rest hours employees are entitled to as a minimum such as you are entitled to a rest period of 11 consecutive hours per 24 hours and you should get a 30 minute break if working six hours or more.

As with any dispute involving a neighbour, it is better to try and resolve it between yourselves before taking legal action. You should try to recollect what hours you have worked for this farmer and go speak with the farmer as soon as possible to discuss what hours he has recorded for you and also to discuss payment.

If he is not inclined to pay you for the work you have done, then you should immediately consult with your solicitor to ensure you protect your position with regard to making a complaint to the Workplace Relations Commission.

 

Deirdre Flynn is from a farming background and practices as a Solicitor at Deirdre Flynn Solicitors, Cathedral View, Ardfert, Co. Kerry Tel: 066 7115695   Email: info@deirdreflynnsolicitors.ie

The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information provided, Deirdre Flynn does not accept responsibility for errors or omissions howsoever arising. You should seek legal advice in relation to your particular circumstances at the earliest possible time.

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