ADJ-00022855

Complainant

Respondent

Anonymised Parties

{A Journalist}

{A Media Company}

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-00029430-001

02/07/2019

The Complainant was a Journalist with the Respondent from 5th February 2018 to 26th March 2019.

The Complainant was hired on a freelance/self-employed basis. She was required to register as self-employed and look after her own taxes. However, she worked 5 days a week in the office, her hours were set by the company, and she could not send a substitute. She worked bank holidays and over Christmas.

In February 2019 her hours were cut from 5 days to 3 days and she discovered that she was not eligible for social welfare as she was deemed “self-employed”.

Scope ultimately found in her favour that she is an employee of the company but from February 2018 to March 2019, the Complainant was denied holiday and applicable sick-pay.

The Complainant worked as a writer from 5th February 2018 to 28th March 2019.

She invoiced for shifts and worked around 5 shifts per week. Shift rates are higher to compensate for holidays, and payment is higher than to employees doing equivalent work. The Complainant was paid 120 euro per shift for the first 6 months, and 140 euro per shift, equivalent to 36,400 euro per annum.

The Respondent believes the Complainant has already been paid any holiday entitlement owing, due to the higher level of her pay, in comparison to equivalent employees.

There is no entitlement to sick pay for staff and this is at the discretion of the company. The company placed the Complainant on a fixed term contract initially. Usually staff then move to a permanent contract if a role is available, in this case the readership was dropping, and the publication was wound down.

I have heard the oral submissions and considered the written submissions of the parties.

This is a claim pursuant to S27 of the Organisation of Working Time Act 1997 of a breach of S19 & 20 of the Act regarding an employee’s entitlement to annual leave. The Complainant was found to be an employee of the Respondent on 27th June 2019 under S300 of the Social Welfare (Consolidation) Act, 2005.

S19 (1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), and employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to-

(a)    4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b)    One-third of a working week for each month in the leave year in which she works at least 117 hours, or

(c)     8% of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks)………………….

The Complainant ceased employment on 28th March 2019. Her complaint was received by the Workplace Relations Commission on 2nd July 2019. She worked 37.5 hours per week. The relevant leave year commenced on 1st April 2018 until 30th March 2019.

The entitlement of the Complainant to annual leave falls under S19 (1)(a) of the Act and is 20 days.

The Respondent says that compensation for annual leave was already included in the shift allowance paid to the Complainant, and equivalent staff are retained on a lower wage than that paid to the Complainant. This is not reflected in the terms of the contract furnished by the Respondent, nor was this agreed by the Complainant. The Act provides the Complainant must be paid her normal weekly wage while on annual leave.

The Labour Court has previously ruled that a weekly allowance cannot be paid to an employee in lieu of her statutory entitlement Mikoian v Motovilova DWT54/2007.

I find the complaint is well founded and direct payment by the Respondent to the Complainant 20 days statutory leave of 8 days at a rate of 120 euro and 12 days at a rate of 140 euro totalling 2,640.00 euro.

I find the complaint is well founded and direct payment by the Respondent to the Complainant of 20 days statutory leave of 8 days at a rate of 120 euro and 12 days at a rate of 140 euro totalling 2,640.00 euro.

Independent contractor, employee, equivalent employee pay