ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000904
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00001309-001 | 07/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00001309-002 | 07/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00001309-003 | 07/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00001314-001 | 07/12/2015 |
Date of Adjudication Hearing: 31/05/2016
Workplace Relations Commission Adjudication Officer: John Tierney
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
I was the Motoring Correspondent for the respondent. I was responsible for broadcasting motoring news across a variety of platforms, including on radio and on RTÉ's web site. In the case of the latter I produced videos and wrote articles. Prior to working specifically for the web site, I was the Motoring Correspondent for the respondent magazine. While I worked with the respondent in a range of capacities from 1990 until July 2015; From January 1, 2003 until July 1, 2015 I was Motoring Correspondent for the national public service broadcaster. The respondent claimed that I was a contractor and issued me with such contracts. However, I did not accept that I was self-employed and it conceded this, as during these years they deducted PAYE, PRSI and USC from my salary and issued me with P60's and payslips. My service as Motoring Correspondent between these years was unbroken. I was never disciplined and my position was not made redundant. Articles have continued to appear on the motoring section of the web site since my dismissal. The respondent simply told me it was not renewing my contract when they claimed it ran out in July 2015. Despite efforts on behalf of my union, which informed the respondent that I was an employee, my former employer did not reinstate me. Since I was dismissed I have done some freelance (self-employed) work for other organisations. However, I am able and willing to continue to act as the respondent’s Motoring Correspondent if reinstated. |
Further to my complaint of unfair dismissal above, I should have been paid any outstanding annual leave entitlement when I was dismissed. I never received this compensation on cessation of my employment. |
All of the relevant details are contained with the information given in relation to my complaint of unfair dismissal. However, I was not given the correction minimum notice and was not paid in lieu thereof. |
My employer claimed I was self-employed and issued me with fixed term contracts claiming this, even though it deducted PAYE, PRSI and USC and issued me with P60's. These contracts were erroneous in referring to me a self-employed, as I was an employee and should have been issued with a contract of indefinite duration. However, my employer dismissed me from my employment from July 1, 2015 when it said my latest contract expired. |
The complaint under the Protection of Employees (Fixed-Term Work) Act was withdrawn
Respondent’s Submission and Presentation:
The Respondent made a preliminary point that the Claimant was never an employee but an independent contractor at all times.
The Hearing was adjourned to consider submissions on this point.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
[Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 9(3) of the Protection of Employees (Employers’ Insolvency) Act, 1984 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 9(4) of that Act.
Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Section 25 of the Equal Status Act, 200 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.]
Decision:
I have considered the submissions of both parties. Having examined the contract of the claimant I am satisfied that his employment status was that of an independent contract and not an employee. Therefore he does not benefit from the legislation under which he has made his complaints.
Dated: 20/10/2016