Case Number: ADJ-00025429. Workplace Relations Commission

• Docket Number: ADJ-00025429
• Hearing Date: 21 February 2020
• Date: 01 May 2022
• Court: Workplace Relations Commission
• Respondent: Media Organisation

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. Due to the COVID-19 pandemic health and safety requirements this case was part heard in person and concluded by remote hearing. The Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, designated the Workplace Relations Commission as a body empowered to hold remote hearings. This case was heard together with case ADJ-00025430 on 21/02/20, 09/09/2020, 19/10/20 and 30/03/2021 as the complaints are similar and the respondent is the employer of both complainants. The complainant gave evidence. The Head of HR (Content Division) and the Head of Production of the relevant section of the respondent gave evidence. The parties were given the opportunity to cross examine the witnesses and questions were asked and answered.

Background:

The complainant is employed as a researcher with the respondent. Starting in 2012 the complainant has at times worked for the respondent under a contract of service and contracts for services. She asserts that she has at all material times been an employee of the respondent. The complainant claims she was entitled to a contract of indefinite duration by operation of law. She further claims she has not been paid her correct salary, has not received paid annual leave, public holidays, not received the breaks and rest periods an employee is entitled to and has not been provided with a statement of her terms and conditions of employment. The respondent asserts the complainant has not accrued a right to a contract of indefinite duration and rejects the other complaints. The complainant submitted her complaints to the Workplace Relations Commission on 11 November 2019.

Summary of Complainant’s Case:

The complainant is an employee of the respondent and is designated as a researcher. The complainant asserts that she has been performing the duties of an assistant producer rather than a researcher. The complainant has been employed on a series of contracts since 2012. The complainant asserts that she has been at all material times an employee of the respondent. The arrangements under which the complainant, and other employees, currently work have been and are the subject of much controversy. In 2018 the respondent engaged external consultants to review and report on its engagement with contractors. Arising from the consultant’s report the complainant was one of 157 people whose status required further review. The complainant asserts that as she was at all material times an employee of the respondent she had entitlements in law and under various statutes, including the Protection of Employees (Fixed-Term Work) Act, 2003, the Payment of Wages Act, 1991, the Organisation of Working Time Act, 1997 and the Terms of Employment (Information) Act 1994. She claims that there were ongoing breaches by the respondent of her rights as an employee. It is the position of the complainant that she has been wrongly graded as a researcher instead of as an assistant producer. Consequently, she has been underpaid for the work she did. It is the position of the complainant that at various material times she was a fixed-term employee and by virtue of the provisions of the Protection of Employees (Fixed-Term Work) Act she was and is entitled to a contract of indefinite duration. The complainant asserts that the respondent deliberately misclassified her as a contractor rather than an employee. This misclassification did not and does not now reflect the factual situation and the legal reality. The misclassification was a considered management stratagem to hide the actual position in relation to employment levels, reduce costs and deprive the complainant of accruing rights under law. The complainant submits that the classification as a contractor on a contract for services was wrong and contrary to law and statute for the following reasons: · There is/was no difference in the way the complainant and her fellow employees or their peer group/comparable permanent employees are/were subject to control and supervision. · There is/was no difference between the complainant and her fellow employees or peer group/comparable permanent employees in not being engaged in an enterprise on their own behalf. · Neither the complainant nor her peer group/comparable permanent employees do/did subcontract their work, supply materials or equipment for the job, are/were exposed to the financial risks, do/did not invest in the enterprise or profit from the enterprise. · The complainant is/was as integrated into the enterprise as her fellow employees or her peer group/comparable permanent employees. The complaint relies on the following decisions to support these submissions. Denny v The Minister for Social Welfare [1998] 1 IR 34, Market Investigations Limited v Minister for Social Security [1969] 3 All ER 732, Castleisland Cattle Breeding Society Limited v Minister for Social and Family Affairs [2004] 4 IR 150, ESB v Minister for Social Community and Family Affairs [2006] IEHC 59, Tierney v An Post [2000] 1 IR 536 and Hall (Inspector of Taxes) v Lorimar [1994] IRLR 171. The complainant referred to the stated values of the respondent and submits that the respondent failed to honour its values in the treatment of the complainant. The complainant stated that the respondent acknowledged that a problem existed regarding the use of contracts for service as a means of engaging staff. Acknowledging the problem, the respondent engaged external consultants to review the various contractual arrangements and report their findings. The review was limited to paper files and to discussions with certain teams. The day to day workings of each freelancer was not reviewed on an individual basis. The complainant submits that the methodology used in the report is deficient in several respects. The report does not address cases, such as the complainant’s, who was initially engaged as an employee and at the respondent’s insistence her status was changed to that of independent contractor. The external consultants reviewed 433 freelancers/contractors providing services to the respondent and concluded that the majority were appropriately engaged and classified as freelancers/contractors. They also concluded that cases of 157 individuals needed further review. The complainant was one of the 157 group of individuals. She was subsequently offered a contract of employment. The complainant was dissatisfied with the terms of the contract offered to her and she lodged an appeal using the internal appeals procedure. The appeal was not upheld. The complainant signed the contract on offer but wrote to the respondent expressing her disappointment and reserving her position on retrospection and her statutory rights, specifically under the Protection of Employees (Fixed-Term Work) Act. CA-00032145-001 – Protection of Employees (Fixed-Term Work) Act, 2003. The Act transposed into Irish law Council Directive 1999/70 concerning the Framework Agreement on Fixed-Term Work. The complainant submits that it is settled law that courts and tribunals interpret and apply the terms of the Act considering the wording and purpose of the Directive to achieve the result pursued by the Directive. It is submitted that the comparable permanent employees in relation to the complainant are/were other programme/production grades within the respondent, specifically others in the Assistant Producer grade. Further, it is submitted that the complainant performed/performs the same or similar work as comparable permanent employees and/or are interchangeable with them. It is submitted that the work performed by the complainant was/is equal or greater in value to the work performed by the other employees concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions. It is submitted that the complainant was treated less favourably in respect of her conditions of employment in every regard but specifically in: pay, increments, hours of work, time off in lieu, holidays, public holidays, privilege days, sick leave, carers, maternity, parental and force majeure leave, pensions, permanent health insurance, death-in-service benefits, career progression, medical insurance, state benefits and redundancy. It is submitted that there are no objective grounds for the less favourable treatment of the complainant. The complainant’s conditions of employment in part and in whole constituted less favourable treatment without justification on objective grounds or the achievement of a legitimate objective. It is submitted that the respondent failed to fulfil its statutory obligation in...