Case Number: ADJ-00024716. Workplace Relations Commission

• Date: 29 July 2022
• Docket Number: ADJ-00024716
• Court: Workplace Relations Commission

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute. This matter was heard by way of both face to face Hearing and remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021) for the hearings post Zalewski the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The Parties consented to continuing the Hearings in Public and under the Zalewski “rules” . The Hearing post Zalewski too place completely in public and the required Affirmation / Oath was administered to any witnesses. The legal perils of committing Perjury were explained to all parties. Full cross examination of Witnesses was allowed. Significant Post Hearing correspondence took place. The Parties relied primarily on their written submissions and the Complainant gave evidence to the effect they had received their entitlements in the year prior to the complaint being submitted.

Background:

The complainant is employed as a Student Counsellor and had a dispute with the Respondent regarding current/ historical complaints relating to annual leave, public holidays, complainant pension contribution required, job Seeker Benefit Entitlements, sick pay and bereavement leave.

Summary of Complainant’s Case:

The Complainant submitted a complaint under the Organisation of Working Time Act 1997 on the date set out above. The Complainant commenced work with the Respondent in or around 2001 and was employed on the date of the complaint. The Complainant job title was Student Counsellor. The complaint had to main components; unpaid holiday/public holiday pay and the issue of what pension contribution the Complainant had to make for prior service pension entitlement. An issue arose in 2016 as to the employment status of the Complainant as to whether they were self employed or employees. The details of this case relate to the employment rights by the Employer since 2000 which continues till now. The issues came to head as far back as 2015 when the Employer proposed to tender the jobs of the 4 counsellors who had been working there since 2000 and in 2016 when the Employer refused to pay €1364 in sick pay to an Employee. The impacted Counsellors referred matters to the Department of Social Protection (DSP) who upheld their claims. The Employer were found by two organs of the State, the Revenue and the Dept of Social Protection to be employees of the Respondent and not self employed. The Complainant has therefore been denied employment rights for 18 years. The Employer has been forced to pay very significant amounts of back money in social insurance and tax to DSP and Revenue as a result yet the people at the centre of this dispute are the only people who have not been paid their rightful due. Instead for 3 years now, the Counsellors who are now close to normal retirement age have been unable inter alia to secure the proper recognition of their pension rights or their leave entitlements for 18 years. This, despite engaging with the Employer directly and via the Employers proposed mediation. Two people began work as Student Counsellors as employees of the Employer in September 2000.. In January 2001 there was a policy change. The Employer changed the employment arrangement from a contract of service to a contract for services. The two employees began working under the new arrangement shortly afterwards in 2001. Up to 2018 the counsellors worked for a 33-week academic year; the Employer varied the number of hours per week worked. The workload has varied from 8 hours per week to the full counselling load of 20 hours per week and on some occasions more than 20 hours per week. In February 2017 a Dept of Social Protection Deciding Officer found that the Counsellors were in fact employees since January 2001 and insurable at rate A1. This decision was upheld by the Chief Appeals Officer in April 2018. Despite this the Employer continued for some time to not implement this decision and sought advice from the Revenue. In response the Revenue also ruled that the Counsellors were in fact employees of the Employer since Jan. 2001. The Employer were in fact held to be liable to backpay the counsellors PAYE since April 2018. Eventually in November 2018 the Employer offered permanent pro rata contracts of employment to the counsellors with a start date of 1 September 2018. The contracts were of course finally welcome but the Employer has continued to resist full recognition of the counsellors’ employment rights from September 2000 up to April 2018. These include rights to Annual Leave, Public Holiday Leave and Pension Entitlements, Illness and Bereavement leave and Social Welfare Benefits foregone. At a previous WRC Adjudication concerning two Counsellors in February 2020, the Employer offered the Counsellors a WRC mediation process to attempt to resolve these issues. It was insisted on by the Employer that in order for the mediation process to happen all 4 counsellors must join in it. COVID did intervene and the mediation process finally took place online in October 2020. The Employer also indicated that some of the delay related to difficulties for them in accessing records going back to 2000. The Counsellors were asked for and provided worked examples to the Employer via the Mediator of their annual leave and pension entitlements from the period 2000 to 2018. The counsellors’ records presented to this Hearing are more complete and include periods when the Employer again treated some of them as employees as well as contractors in 2012 and 2013, records which the Employer were unable to source. Ultimately unfortunately no progress was made at the mediation process. In fact, despite requesting the mediation process, no offer whatsoever to address the 17 years of issues was made by the Employer and the counsellors’ claims went unanswered. This was very disappointing for a mediation process which the Employer initiated and proposed “in order to resolve outstanding matters including pension, annual leave, public holidays, summer overpayments and retirement “. The counsellors had entered into the mediation process in good faith in the spirit of reaching an agreement. The Mediator referred the case back to Adjudication which met initially online on November 4th and agreed an in-person adjudication for December 3rd 2021 and February 28th 2022. The Employee Representative then set out each of the areas of dispute in turn. Annual leave and Public Holidays From January 2001 until April 2018 each of the counsellors was paid by the Employer as a self employed contractor. Two of them had previously been employees until their status was changed by the Employer as shown above. The Dept of Social Protection ruled that all 4 had in fact been employees of the Employer since January 2001. By persisting with the self-employment construction for 17 years the Employer actively prevented the 4 counsellors from receiving their annual leave or public holiday entitlements. Because they have been actively so prevented their case is supported by the CJEU case of King v Sash Windows (2017). In that case, the CJEU ruled that a worker who was denied his right to annual leave as a result of being incorrectly classified as self-employed was entitled to back-dated annual leave pay. Mr King was awarded 13 years’ worth of untaken annual leave pay. This award serves to highlight that leave may be carried over indefinitely in circumstances where the employee has been denied their right to take their leave. It has been pointed out by the Respondent that Organisation of Working time Act 1997 puts a statutory limit on an employee to claim annual leave beyond a 6-month period. However, the CJEU has in 2019 ruled that “Rules of national law, even constitutional provisions, cannot be allowed to undermine the unity and effectiveness of EU law … “. This ruling was the outcome in Minister for Justice and Equality and Commissioner of An Garda Síochána v Workplace Relations Commission referred by the Supreme Court to the CJEU in 2019. The CJEU found in this case that “It follows from the principle of primacy of EU law, as interpreted by the Court in the caselaw referred to in paragraphs 35 to 38 of the present judgment, that bodies called upon, within the exercise of their respective powers, to apply EU law are obliged to adopt all the measures necessary to ensure that EU law is fully effective, disapplying if need be, any national provisions or national case-law that are contrary to EU law. This means that those bodies, in order to ensure that EU law is fully effective, must neither request nor await the prior...