Complainant

Respondent

Anonymised Parties

A Holistic Therapist

A Holistic Therapy Business

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00031206-001

30/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00031206-002

30/09/2019

The respondent company provides complementary holistic therapies to nursing home residents and the complainant commenced work on a part-time basis on April 3rd 2009.   For the duration of her service with the respondent, the complainant also had her own business, providing holistic therapies to private clients. Information submitted at the hearing shows that, in 2009, the complainant worked for the respondent for an average of 2.75 hours each week and, for the eight years up to 2017, she worked an average of 14.75 hours a week. From the date of her commencement in 2009, she was paid an hourly rate of €17.00. In October 2016, this was increased to €19.00.

The respondent’s position is that the complainant was a self-employed contractor and not a direct employee with entitlements to holidays and public holidays in accordance with the provisions of the Organisation of Working Time Act 1997.   The complainant claims that she was a direct employee and, on May 29th 2018, the Scope section of the Department of Employment Affairs and Social Protection (DEASP) confirmed that, from April 3rd 2009 until December 31st 2017, the working arrangements between the respondent and the complainant were consistent with a contract of service. Following an appeal by the respondent, this was confirmed on April 24th 2019.

These complaints are about the non-payment of holiday and public holiday pay for the duration of the complainant’s employment from July 2009 until December 2017. They were submitted to the WRC on September 30th 2019, 21 months after the complainant last worked for the respondent.   The respondent’s position is that they have been submitted outside the statutory timeframe for adjudication.

Section 6 of the Workplace Relations Act 2015 sets out the timeframe within which complaints may be submitted for adjudication:

“…an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

An extension of time is provided for at subsection 8 of this section:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

It is clear from this section of the Workplace Relations Act that, “for reasonable cause,” the legislation provides for an extension of the time limit for submitting a complaint from six months to 12 months and therefore, the last date for submission of these complaints to the WRC was December 31st 2018.

Explaining the reason why she delayed until September 2019, the complainant said that she requested a DEASP Scope investigation regarding her status on September 14th 2017. She ceased working for the respondent in December the same year. Her employment on a contract of service was confirmed by Scope on May 29th 2018, but this was appealed and the decision of the Social Welfare Appeals Officer upholding her status as an employee was issued on April 30th 2019.   In the form she submitted to the WRC, the complainant stated,

“Given that prior to the decision from the SWAO I could not initiate proceedings for this complaint, I have taken the date of the ruling, 30/04/19, as the starting point for the time limit in taking this action.”

It is my view that this does not adequately explain the cause of the delay submitting these complaints. On the form she submitted to the WRC, the complainant said that “over the years it became apparent that this title (sub-contractor) did not accurately describe the working relationship.” It is apparent therefore, that “over the years” and, at the very latest on September 14th 2017, when she asked Scope to investigate her status, the complainant held the view that her status was that of an employee and not a contractor. At the time she submitted her request for an investigation to Scope, or, within six months after her employment terminated, there was no impediment preventing her from submitting these complaints to the WRC.

When she received the positive outcome from Scope on May 29th 2018, she was still within the six-month time limit for submitting a complaint to the WRC, but she did not do so.

At the hearing, the complainant argued that the first time that she had “legal standing” to initiate these complaints was on April 30th 2019, when she received the results of the respondent’s appeal of the Scope decision. I do not accept this argument. Leaving aside the fact that she delayed for a further five months before submitting the complaints; at all times during her employment and, for six months (and up to 12 months) afterwards, she was legally entitled to make a complaint to the WRC regarding her holiday entitlement.

The complainant’s circumstances are reflected in the case at the High Court of The National Museum of Ireland v Minister for Social Protection [2016] IEHC 135, where Mr Justice Murphy concluded that,

“The Organisation of Working Time Act 1997, the Protection of Employees (Fixed Term Work) Act 2003 and the Social Welfare Consolidation Act have all provided for different statutory mechanisms to resolve what are in essence, different issues arising from an employer-employee relationship. Each of those Acts provides for an ultimate appeal to the High Court on a point of law. None of the Acts provides that the decision of one decision making body is binding on the other. The legislature in its wisdom has seen fit to set up different statutory schemes to deal with different employment issues. Undoubtedly it would be far more efficient to have one body charged with the resolution of all issues relating to employment status. This however is a matter for the legislature and not the courts and as matters stand, employees enjoy rights to seek redress simultaneously from the Rights Commissioner and the Department of Social Welfare depending on the nature of their complaint.”

Taking my authority from this judgement, I have reached the conclusion that the complainant was not prevented from submitting a complaint to the WRC in parallel to her request for an investigation by Scope. Aside from this, I find that I have no jurisdiction to extend the time limit for adjudicating on this complaint beyond the time limit of 12 months set out at section 6(8) of the Workplace Relations Act 2015.

For completeness, I wish to refer to a precedent of the Court of Justice of the European Union (CJEU) relied upon by the complainant, case C:2017/914, Conley King v the Sash Window Workshop Limited. Mr King was employed as a contractor on a commission-only basis and, for the three years that he worked for Sash Windows, he was not paid for holidays. When he retired in October 2012, his employer rejected his request for holiday pay. He brought his case to the Employment Tribunal in the UK, which concluded that he was a “worker” within the meaning of Directive 2003/88 concerning the organisation of working time, and therefore entitled to paid annual leave.   This outcome was appealed by the employer and the UK Employment Appeal Tribunal referred the matter to the CJEU for an opinion. Finding that Mr King’s status as a worker gave him rights under Directive 2003/88, the Court decided that he was entitled to pay for the holidays that he took and for which he was not paid and for holidays that he did not take when he worked for Sash Windows from June 2009 until October 2012.

While this case is useful from the perspective of the rights of a contractor to the holidays prescribed under Directive 2003/88, it does not address the issue of the time limit.   Also, unlike the complainant here, Mr King brought his complaint about holidays directly to the Employment Tribunal in the first instance, accepting that his status as a contractor was no impediment to him doing so.

Having concluded that there was no reasonable cause for the complainant submitting her complaints outside the legal time limit, I decide that I have no jurisdiction to adjudicate on these complaints.

Holiday pay, public holiday pay, time limits