member of staff has extorted money from another staff member

[Bronte]

, we've not cut his wages or his hours once during this recession. He's on €500 + a week for driving around and supervising a team of 4 lads. !!

Complainer my apologies, I've reread the OP's posts, particular this. Sounds like an employee to me.

 

[Mpsox]

I'm not going to comment on the tax issue, others with skills in that area would be far better able to do so.

One thing I am not clear from the OP posts is whether or not there is the person "extorting" the money has potentially a legitimate reason for doing so. You mention "damage" in one line of the post. Why is this guy asking for money in the first place?

 

[Complainer]

Complainer my apologies, I've reread the OP's posts, particular this. Sounds like an employee to me.

No problem.

 

[Latrade]

On the employment law aspect, there is plenty of case law as to who is considered an "employee" and who is a "contractor". As the query is regarding a particular aspect of employment law, this should be your reference. (main reference the "Denny" Case from the Supreme Court).

The full list of "differences" is quite comprehensive, so you'd have to look through them. Here's the Revenue's code of practice:

http://www.revenue.ie/en/practitioner/codes-practice.html

(Last link "determining employment or self-employment status).

The upshot is that if they are considered a contractor and not employee, then they are not protected by unfair dismissals legislation. In this case you would be required to protect the employee from inappropriate behaviour. As the contractor is the source, you can act as you wish in order to remove the problem.

However, if the individual is an employee, then you couldn't react so severly without due process and investigation. It is unfortunate that you do not have a policy on bullying, however this does not mean that your investigation into the issue can't follow the codes of practice that exist. I would look into the LRC and the HSA's codes and bas your investigation around their advice.

 

[mathepac]

We have no procedures, we've never had to fire anyone before...

Sorry but to me that's like saying "No Guard, I never had motor insurance, sure I've never had to claim before".

... The only person we have recived advice from was our accountant, who said it could come back on us, and to be careful ...

Your accountant is correct - there are several aspects of the situation that could have adverse consequences for you.

... He is an indepentant contractor so he has no contract as such...

If you read the Revenue guidelines in the link supplied by Latrade above, I think you will find there is a possibility that Revenue will conclude he is an employee. This potentially has adverse consequences for the employer in a bullying / extortion situation, especially as there are no guidelines or procedures in place.

... The only thing they sign when they start working for us, is a mini contract i suppose that our solicitor drew up for us saying that they are fully aware they are independant contractors, and they are responsible for their own tax and prsi contributions, work is never guaranteed things like that. It's pretty basic....

Basically useless unfortunately as the contract in itself is inadequate in establishing the status of an individual in an organisation from a Revenue perspective.

 

[Latrade]

The absence of a policy does not justify the alleged actions. What they do dictate is the handling of the incident. I cannot claim my actions weren't inappropriate or even in breach of my contract purely because the employer didn't have a policy.

With or without a policy acceptable behaviour is a part of my contract of employment.

Where the policy has an impact is in laying out a fair procedure for investigation. The absence of this policy doesn't mean an investigation can't be carried out, it just means you're slightly tied as to how far you can go and that you more than employer who's used their own policy, you will have to ensure that you follow any Code of Practice to the letter.

You can still proceed with an investigation and possible sanctions with out a policy as long as it is a fair and just procedure.

 

[DB74]

So just to clarify

There is no issue in getting rid of a bona-fide contractor as you merely stop giving him work. There is nothing he can do about it.

However your problems will start if he then goes and starts to say that actually he wasn't a contractor but that he was an employee and he was dismissed unfairly etc etc.

If this happens then you are into the nitty-gritty of proving that he was a contractor in the first place and, to be honest, from reading your posts, it would seem like he is really an employee, irrespective of what you or he thinks. In fact your thread title would support this argument.

If you decide to get rid of him, and he decided NOT to pursue the matter then you would probably never have an issue but if he did decide to go down the legal route it could get very very messy and expensive for you.

The other issue is that even if you decide to keep him on you still have the employee vs contractor problem to worry about.

 

[Howitzer]

I may be missing something here but I don't see where you have said that you have asked for and received the version of events from your long-standing member of staff?

Surely this should be your first step. Call him in, advise him of the complaint against him and ask for his side of the story. Then reserve your reaction until you have considered this.

+1

I would have thought this to be the first port of call. Everything else is just speculation. In fact doing anything else may be construed by pre-supposing guilt.

 

[samanthajane]

This thread has been reopened after consideration by the moderators.

Samanthajane, you might bear in mind that by posting here you are potentially alerting all the people involved to what is happening, if any of them are reading Askaboutmoney. Please make sure you don't say anything that could identify the individual engaging in the alleged extortion.

will do, no problem

When you say 100%, does this mean that Revenue have confirmed to you that they approve of this arrangement? Because they are the only people who can give you 100% on this. The fact that you don't do all the other things that employers do (minimum wage, holiday pay, guaranteed hours) doesn't mean that you will get away with this. The fact that they have signed up as independent contractors doesn't mean that you will get away with this.

Yes revenue have confirmed with me that we can class these people as independant contractors. We do have 2 members of staff that connot be classed as this so they are on the books so to speak and recieve pay slips from us with all the relevant information on, take away their tax, prsi and pay all our contribution for them. Orginally we thought we could class them as independant contractors ( we had a different accountant then ) but when we swapped over t th new accountant he was concerned that they wouldn't meet the requirements, so after alot of digging and contacting the revenue i'm 100% sure that were doing nothing wrong and are fully legal.

I may be missing something here but I don't see where you have said that you have asked for and received the version of events from your long-standing member of staff?

Surely this should be your first step. Call him in, advise him of the complaint against him and ask for his side of the story. Then reserve your reaction until you have considered this.

We did hear a phone conversation, with him admitting that he had taken money from him for this damage he said the other guy did...again there never was any damage in the first place, and he was expecting the remaining this week. We were holding off talking to him to figure things out a bit more. Hearing his side of the story wasn't going to take away the fact we knew he had done it in the first place.

Complainer is right, Revenue have their own rules about contractors and chances are the OP does not meet them. We even had an argument with them which we eventually won. As far as they were concerned just because we had desk for someone they were an employee, despite the fact that they had their own company, worked for a couple of other of companies at the same time and was only here for a few half days each week.

No 100% they meet the requirments for being classed as independant contractors.

Anyway update..after advice fom our solicitor and also you people here reminding me that as an independant contractor we dont have to offer him anymore work...just needed that confirmed and we did. So my partner rang him and told him that there wouldn't be anymore work for him. We were planning to just give the money back to the other guy ourselves and just let it go.

But then an hour later he turned up at the door wanting to know why. So it all came out that we knew what he had done. There was a lot of tears and apoligising from his part, he admitted to doing it and said he was planning on giving the money back to him at a later date when he had it. He just needed more money coming up to christmas and moving into the new house. Pleaded to keep his job, but there's just no way we can have him working for us anymore, he's agreed to give back the money to the other guy out of his wages this week and we'll transfer what ever is remaining into his account as normal.

Not sure what he's told his wife but it's not the truth. She rang a few times wanting to know how we as friends could let him go just before christmas!! I dont feel it's our place to tell her what has happened, and told her we were really sorry we had no choice and she would have to discussed it with her husband. She not giving up though she's left a few more messages today.

 

[samanthajane]

not sure how but i missed the whole 2nd page of this thread!

I was told not to give away too much details, so i cant say the nature of our business, if i could then it would be alot easier to explain.

Him being on 500+ a week is an average that i gave, it varies from week to week, he gets paid a slightly higher rate than the other guys because he is in charge or over seeing their work as well. He still does the same job as what the others do, but because he has to organise them as well he cant be expected to do as much as what they do, so to make up for that he's on a higher rate.
But he still does only get paid for the work that he does.

There arnt many but a few other businesses that do the same thing that we do and i know that all there workers are classed as independant contractors as well.

Even when they ask us to do work for them, we as a business are still classed as a contractor. We give them the invoice for the work done and they pay us, same as what we do for our staff.