Complainant

Respondent

Anonymised Parties

Researcher

Media Organisation

Representatives

James Doran BL instructed by Macaulay & Co Solicitors

Séamus Given Arthur Cox

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00032145-001

11/11/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00032145-002

11/11/2019

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

CA-00032145-003

11/11/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00032145-004

11/11/2019

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.

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 accordance with Section 8 of the Act concerning written statements and objective reasons.  In the circumstances it is just and equitable to draw the inference that the failure of the respondent to inform the complainant of the objective grounds was because there were none and that the respondent was merely attempting to avoid its obligations under law.  The complainant relies on the Labour Court decision in HSE Northern Area v Khan [2006] 17 E.L.R. 313 to demonstrate the significance of Section 8(2) of the Act.

It is submitted that the respondent was in breach of its obligations under Section 9 of the Act and the complainant was entitled to a contract of indefinite duration.  The complainant referred to the decision of the Labour Court in HSE Dublin North East v Ali Umar FTC/09/28 to support her submission that she was entitled to a contract of indefinite duration. 

It is submitted that the respondent breached the provisions of Section 10 of the Act, particularly in relation to access to appropriate training opportunities to enhance her skills, career development and occupational mobility.

It is submitted that the respondent has through agreements, including the specific provisions of contracts sought to exclude and limit the application of the Act, contrary to Section 12, thereby stopping the complainant accessing and accruing her statutory rights.

CA-00032145-004 – Payment of Wages Act, 1991

The complainant submits that there existed between her and the respondent an employment relationship and that she did not receive wages due to her.  Further, it is submitted that the respondent failed to provide the complainant with a Statement of Wages and Deduction from Wages in accordance with Section 4 of the Act.

It is submitted that the respondent made deductions in respect of monies due to the complainant under the Act and that the deficiency in the payments made by the respondent amount to deductions.  It is submitted that the complainant is entitled to recover monies owing to her by way of salary, increment, pay for holidays, public holidays, sick leave and time off in lieu.

The complainant submits the respondent breached the complainant’s rights under the various sections of the Act.

CA-00032145-003 – Organisation of Working Time Act, 1997

The complainant submitted that she was at all relevant times an employee of the respondent, employed by way of contracts of service, entitled to terms and conditions in accordance with collective agreements, to paid annual leave, to paid public holidays, rest periods and that during her working time she was at her place of work or at the disposal of the respondent and carrying on or performing the activities or duties of her work.

The complainant submitted that the respondent did not provide her with adequate rest periods.  Further, the respondent required her to work for periods of more than 4 hours and 30 minutes without a break of at least 15 minutes and/or to work for more than 6 hours without a break of 30 minutes.  The respondent requires the complainant to work more than an average of 48 hours in a seven day period.  The respondent did not provide the complainant with proper notice of starting and/or finishing times.

The complainant submitted that she was at all material time denied paid annual leave.  Relying on the decision of the CJEU in MaxPlanck-gesellschaft zur Forderung der Wissenschaften eV v Tetsuji Shimizu Case C-684/16, 06 November 2018, the complainant submitted that provisions in domestic law or contracts of employment providing for the automatic loss of the period of paid annual leave where the worker does not ask to exercise his/her right is precluded under Community law.  The complainant also referred to the decision in Kreuziger v Land Berlin Case C-619/19 in support of this submission.

The complainant also submitted that where national legislation does not provide for the rights to which the Directive entitles an employee then the national court must disregard such national legislation. It was submitted that the MaxPlanck and Bauer v Willermoth Case C-569/16 decisions supported this submission.  The complainant referred to the decision in Minister for Justice and Equality v Workplace Relations Commission Case C-378/17 in the context of interpretation and the disapplication of national law.

The complainant referred to the decision in Hein v Albert Holzkamm GmbH & Co. KG Case C-385/17 regarding the calculation of remuneration to be paid in respect of the minimum period of annual leave guaranteed by EU law.  In addition, the decision dealt with what account is to be taken of overtime in calculating the remuneration due in respect of the paid annual leave entitlement.

The complainant referred to the decision in King v The Sash Window Workshop Ltd and Dollar Case C-214/16 in the context of payment for annual leave not taken over several consecutive reference periods.  It was submitted that following this decision it is only when the employment relationship is terminated that there is a right to a payment in lieu of the annual leave.  Accordingly, the Statute of Limitation did not apply to prevent the payment in lieu to Mr King applying to periods of leave that ought to have been taken and/or paid many years in the past.

CA-00032145-002 – Terms of Employment (Information) Act, 1994

The complainant submitted that the respondent failed to comply with the provision of the Act.

Interpretation of Legislation

The complainant submitted that in applying domestic legislation rooted in Community law the approach should be purposive rather than a literal interpretation.  Further, in interpreting national legislation, transposing Community law, a formalistic approach should not be adopted but weight should also be placed on the consequences of a particular interpretation.   In the submission on this point the complainant relied on the decision in Minister for Justice v Workplace Relations Commission Case C-378/17.

Conclusion

The complainant is and was at all relevant times an employee of the respondent.  She was not an independent contractor.  She was not in business in her own right.  She was performing duties for the respondent as an employee. 

The complainant claims, under law and statute, that the complaints are well founded, and she seeks the following redress:

Confirmation/determination that at all relevant time she was an employee of the respondent working under contracts of service.

Confirmation/determination that at various times she was a fixed-term employee of the respondent.

Determination that the statutory claims are well founded.

Confirmation that by operation of law she attained a contract of indefinite duration.

Redress under the Employees (Fixed-Term) Work Act, 2003.

Redress under the Payment of Wages Act, 1991.

Redress under the Organisation of Working Time Act, 1997.

Redress under the Terms of Employment (Information) Act, 1994.

The complainant in her complaint form claims that:

a)       She is entitled to a contract of indefinite duration and that the respondent treated her less favourably than a comparable permanent employee.

b)      She should have been provided with a written statement of her terms and conditions of employment.

c)       There have been breaches of the Organisation of Working Time Act, 1997.

d)      There have been unlawful deductions made to her wages.

The respondent is satisfied that the complainant has not accrued a right to a contract of indefinite duration.  Furthermore, the respondent is satisfied that the rest of her complaints should be dismissed.

The respondent notes that the complainant did not make a complaint under Section 8 or Section 10 of the Protection of Employees (Fixed-Term Work) Act, 2003 in her complaint form.

The following is a summary of the complainant’s history with the respondent:

2012/2013

The complainant worked as a freelance researcher on a series of six contracts commencing on 02 April 2012 and ending on 30 June 2013.  In total she worked one year and twenty eight days.

2013/2014

The complaint was employed by the respondent as a Programme Department Assistant on a fixed purpose contract to cover maternity leave.  She commenced employment on 25 November 2013 and her contract terminated on 30 November 2014.  In total she worked for one year and five days on this fixed purpose contract.

2015/2017

The complainant worked as a freelance researcher on a series of four contracts commencing on 17 August 2015 and ending on 29 May 2017.  In total she worked one year, eight months and seventeen days.

2017/2018

The complainant worked as a freelance researcher on a series of three contracts commencing on 11 September 2017 and ending on 27 May 2018.  In total she worked for eight months and sixteen days.

2018/2019

The complainant worked as a freelance researcher on a series of three contracts commencing on 06 September 2018 and ending on 19 July 2019.  In total she worked for ten months and thirteen days.

During the following periods the complainant did not work for the respondent in any capacity:

2013 – 01 July to 24 November – Four months and twenty four days.

2014/2015 – 01 December 2014 to 16 August 2015 – Eight months and sixteen days.  The complainant worked as a video journalist with another organisation in a permanent position.

2017 – 30 May to 10 September – Three months and ten days.  The complainant worked as an Assistant Producer with an independent television production company.

2018 – 28 May to 05 September – Three months and twelve days. 

Public Competition

In July 2018 the respondent advertised several roles specific to the location where the complainant had worked.  The advertisement was for Producer Director, Assistant Producers and Researchers to fill panels for future vacancies.  The complainant applied for the roles of Producer Director and Assistant Producer.  The complainant was shortlisted for the Assistant Producer role and attended for interview.  She was not successful in obtaining a position or in being placed on a panel.  The complainant did not apply for the Researcher role.

Freelance / Contractor Review

In 2018 the respondent retained external professionals to conduct a legal review of and to report on the freelance/contractor group working with the organisation.  Following the review, the respondent introduced a new policy which established the appropriate categorisation for the future of freelance contractors providing services.  It was agreed with representative trade unions that contracts of employment would be offered, to 81 people found to have attributes akin to employment, that would reflect the pattern of engagement with the respondent over the previous two years.  As per the agreement the process would assign the persons concerned to the grade and the salary for grade appropriate to the nature of the work.

As part of the agreed process the complainant was offered an ongoing contract of part-time employment with the respondent.  The contract offered was for the position of researcher.  The complainant was given four weeks to consider the offer.  Within the four weeks she had the opportunity to discuss any aspect of the offer with a member of the HR team.  The letter of offer stated that if the contract of employment was not accepted and received back by 28 August 2019 the offer would lapse.

On 12 August 2019 the complainant and her trade union representative met with the HR Manager and the Head of Production of the relevant sections.  The closing date on the offer of employment was subsequently extended from 28 August to 03 September 2019.  The agreement with the unions included a right of appeal through an independent appeals process.  Any such appeal might concern the pay point on the grade or the hours of work offered.  The complainant advised the respondent on 02 September 2019 that she would be appealing the offer made to her.

The appeal hearing took place on 14 October 2019.  The complainant attended the hearing accompanied by her trade union representative.  The Appeal Board was composed of one independent external member and one internal member.  The Appeal Board issued its decision on 17 October 2019 concluding that the contract offered to the complainant reflected the pattern of engagement with the respondent over the previous two years and that the grade and pay were appropriate to the nature of the work undertaken.

The following day the respondent re-offered the complainant the contract of employment.  Following the recommendation of the Appeal Board the contract was backdated to 23 September 2019.  The complainant accepted that offer and is currently employed under that contract.

The respondent is satisfied that the offer made to the complainant is fair, reasonable and reflects the established salary scale and standards as agreed with the unions.

CA-00032145-001 – Protection of Employees (Fixed-Term Work) Act, 2003.

The complainant contends that she is entitled to a contract of indefinite duration.  The respondent contests that claim.  To succeed in her complainant, the complainant would have to establish that she has been at all relevant times an employee of the respondent and that she meets the statutory criteria for such a contract.

Section 9(2) of the Act provides that where “a fixed-term employee is employed by his or her employer …. on two or more continuous fixed-term contracts …. the aggregate duration of such contracts shall not exceed 4 years”.  The respondent asserts that the complainant did not have continuous service with the respondent since September 2013 as she claims.

The respondent asserts that the complainant is unable to demonstrate continuous service as required under the Act.  Further, it has been long established that a break in employment severs the continuity of service.  Section 9(2) of the Act refers to the First Schedule to the Minimum Notice and Terms of Employment Act, 1973 to 2001 to ascertaining the period of service of an employee and whether the service has been continuous.  The First Schedule states that continuous service “shall not be broken by the dismissal of the employee …. followed by the immediate re-employment of the employee”.  Between December 2014 and August 2015, the complainant worked full-time as a video journalist with another organisation.  That period of employment with another organisation defeats any argument for continuous service claimed by the complainant.  In 2017 the complainant was employed full-time with yet another employer.  Again, this defeats the complainant’s claim of continuous service.

The period between the complainant’s freelance contracts in 2018 was three and a half months.  The respondent submits that a break of this length between freelance contracts defeats a claim of continuous service.  The respondent relies on the decision of the Employment Appeals Tribunal in Myles v O’Kane [1991] E.L.R. 217 to support this submission.  In that case the Tribunal ruled that “two periods of employment with a break of four months between them, must be regarded as separate periods of employment”.  The respondent asserts that there was no agreement, understanding or commitment in May 2018 that the complainant would return in September 2018.

The respondent asserts that the complainant was not employed for the four year aggregate duration necessary to acquire a right to a contract of indefinite duration.  Even if it were to be assumed that the time prior to September 2018 was to be considered (which is not conceded) the complainant has only accumulated 39 months and 9 days as a freelance contractor.  Therefore, she does not meet the four year aggregate required under the Act.

The complainant submitted invoices under her independent contractor agreements which in most included VAT as a self-employed person.  In addition, the complainant deducted days from the weekly rate for annual leave and sick leave as she did not have an entitlement to either under her freelance contract.  At no time prior to filing this complaint did the complainant contend that she was an employee.

The respondent rejects the complainant of penalisation.  The offer made to the complainant does not constitute penalisation, it is a bona fide attempt to address her current relationship with the respondent.  She was treated the same as her counterparts.  She was offered a contract of employment in line with the Governing Principles agreed with the union representatives.

The temporal scope for the submission of complaints contained in Section 41(6) of the Workplace Relations Act applies to complaints under the Protections of Employees (Fixed-Term Work) Act.  The complainant filed her complaint on 11 November 2019 and therefore the relevant six-month period commenced on 12 May 2019.  Thus, it is only necessary to look at the complainant’s final independent contractor agreement and her current employment contract.

The respondent submits that the complainant’s claim under the Protection of Employees (Fixed-Term Work) Act should be dismissed.

CA-00032145-002 – Terms of Employment (Information) Act, 1994

The temporal scope for the submission of complaints contained in Section 41(6) of the Workplace Relations Act applies to complaints under the Terms and Conditions of Employment (Information) Act, 1994.  The relevant period to be examined is from 12 May to 11 November 2019.  Thus, it is only necessary to look at the complainant’s final independent contractor agreement and her current employment contract. 

The respondent submits at in all her engagements with the respondent as an employee, whether as a fixed-term worker or in her current role she was presented with written terms and conditions, as demonstrated in the documents appended to the submission.  Furthermore, even if the complainant was able to establish that she was an employee (which is not conceded) her terms and conditions were presented to her, as demonstrated in documents appended to the submission.

The respondent submits that is claim should be dismissed.

CA-00032145-003 – Organisation of Working Time Act, 1997

The temporal scope of Section 41(6) of the Workplace Relations Act, 2015 applies to complaints brought under the Organisation of Working Time Act, 1997.  The relevant period is from 12 May to 11 November 2019, the date the complaint was submitted.

The respondent submits that the Organisation of Working Time Act does not apply to the complainant’s independent contractor agreement.  If one were to assume that during this period the complainant was an employee, which is contested, then there is no evidence to substantiate this claim.  The invoices submitted by the complainant demonstrate that she worked regular hours during the relevant period.  In April 2019 the complainant charged for an extra 4 hours work on the evening of 16 April but, there is no other reference in her 2019 invoices to her working additional hours.

The complainant’s current contract of employment with the respondent includes specific sections on hours of work (clause 7) and holidays (clause 8).  The complainant provides no evidence to substantiate her claim that she was required to work more than 48 hours per week.

The complainant is employed as a researcher.  The researcher grade has set hours of work at 44 hours gross per week.  In line with other production grades any additional hours worked above the weekly gross hours are worked on a time off in lieu (TOIL) basis.  All time off in lieu must be approved and agreed with the Head of Production in advance of the additional hours being worked.  The complainant has not asked for TOIL during her time as an employee.  Therefore, she had given no indication that she worked more than the requisite hours during the relevant time as an employee.

The respondent submits that the complainant has not demonstrated any break of the Organisation of Working Time Act has occurred and her claim should be dismissed.

CA-00032145-004 – Payment of Wages Act, 1991

The complainant claims there have been unlawful deductions made to her wages.  The temporal scope of Section 41(6) of the Workplace Relations Act, 2015 applies to complaints brought under the Payment of Wages Act.  Therefore, the relevant period to be examined is 12 May to 11 November 2019, the date the complaint was submitted.  Thus, it is only necessary to look at the complainant’s final independent contractor agreement and her current employment contract.

On 05 November 2019 the complainant contacted HR about a problem with her pay.  Due to an unfortunate administrative error the complainant was paid as a part-time employee instead of being paid as a full-time employee.  This was a genuine error and it was rectified in the next pay period.

Since that error the complainant has been paid correctly without deductions and she has been provided with her payslips every fortnight.  The respondent submits that this complaint should therefore be dismissed.

Conclusion

The complainant asserts that she should have received a contract of indefinite duration “at an earlier stage”.  This is contested by the respondent.  The complainant has not established that she meets the statutory criteria for such a contract.

The complainant is currently an employee of the respondent.  Her contract of employment as a researcher reflects the salary scale for the grade and the hours appropriate to the nature of her work as a researcher.  This salary scale was agreed with trade union representatives,

The respondent submits that for the reasons outlined above the complainant’s claims should be rejected.

The complainant submitted four complaints on 11 November 2019.  The complaints are brought under the Protection of Employees (Fixed-Term Work) Act 2003, Terms of Employment (Information) Act 1994, Organisation of Working Time Act 1997 and Payment of Wages Act 1991.  I have considered the complaints in the order in which they were presented by the complainant.

CA-00032145-001

Complaints under the Protection of Employees (Fixed-Term Work) Act 2003.

Counsel for the complainant contends that she was at all material times an employee of the respondent.  Further it is contended that she was at times misclassified as an independent contractor.

It is contended that the complainant was treated less favourably than other permanent employees of the respondent in the programme/production grades and specifically those in the Assistant Producer grade.  In addition, it is stated that there were no objective grounds for her less favourable treatment.

The complaints include claims of entitlement to a contract of indefinite duration, failure by the respondent to fulfil its statutory obligation to provide written statements of her terms and conditions, failure to provide access to training opportunities and an attempt to exclude and limit the application of the Act

The respondent contends that the complainant has not accrued a right to a contract of indefinite duration and rejects the other complaints.  The respondent states that the complainant worked both as an employee and an independent contractor at different times between 2012 and 2019.

Legislation

The Protection of Employees (Fixed-Term Work) Act 2003 gives effect to Council Directive 1999/70/EC on fixed-term work (the Fixed-Term Work Directive).  The Fixed-Term Work Directive gives effect to the Framework Agreement on Fixed-Term Contracts concluded in March 1999.  The Framework Agreement has two purposes:

·       to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination; and

·       to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.

The non-discrimination principle is given effect by section 6 of the Act, which provides that a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.  Under section 10 the employer is required to inform a fixed-term employee of vacancies arising to ensure he or she shall have the same opportunity to secure a permanent position as other employees.

Protection against abuse arising from the use of successive fixed-term contracts of employment is provided under section 9(2) of the Act.  That section provides that where a fixed-term employee is employed on two or more continuous fixed-term contracts, then the aggregate duration of such contracts shall not exceed four years, unless there are objective grounds justifying the renewal of a contract of employment for a fixed term.

The protections of the Act, as set out above, apply to fixed-term employees.  Section 2 of the Act defines “fixed-term employee” as:

“fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event but does not include—

(a) employees in initial vocational training relationships or apprenticeship schemes,

or

(b) employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme;

As the complainant contends that she was at all material times an employee and the respondent contends that she was at one time an employee and at all other times an independent contractor, I must first decide if the complainant was an employee or an independent contractor. 

Employee or Independent Contractor?

It is agreed that the complainant was employed as a Programme Department Assistant from 25 November 2013 to 30 November 2014.  That employment contract was for the specific purpose of covering a period of maternity leave of another employee.  That was the only occasion when the respondent issued a fixed-term contract to the complainant.  At all other times the complainant was issued with documents setting out terms of engagement as an independent contractor.

Evidence

Complainant

The complainant in her oral testimony described her work history with the respondent.  She stated that the work she performed was no different to that of similar PAYE employees of the respondent.  She stated she sought to be employed as an employee rather than as an independent contractor but was told that this would not be permitted by HR. 

The complainant stated that as she had been designated as an independent contractor rather than an employee she did not receive payment for holidays.  Describing her work arrangements, she stated that she commenced work most mornings between 08.00 and 08.30 and often worked 12 to 14 hours days when filming.  Time off in lieu was often promised but not provided due to demands of the schedule.  She claimed she had worked 166 days of TOIL.  Her work hours were directed by her manager.

The complainant stated that although she was described as a researcher she frequently did work at the level of Assistant Producer.  Specifically, she did work as a Digital Content Creator, producing a lot of items and shooting and editing reports.  She stated she had been promised an Assistant Producer contract by her manager when she agreed to do the Digital Content work.  This work was subsequently removed, and she felt she had been demoted. In her view the removal of this work lessened her chance of obtaining a permanent Assistant Producer post.  In 2018 she applied for an Assistant Producer post, but she was unsuccessful in her application.

In comparing her work arrangements to those of employees the complainant stated that her experience was not recognised in setting her remuneration for her current contract, whereas other employees received annual increments.  She had to negotiate with her manager on each occasion but, he set the rate of pay that she received for the independent contract work.  She stated that when she was offered an employee contract, in 2019, her salary did not reflect her experience or working hours and was she believed a reduction in pay.  She contended that she had been placed at a point on the researcher scale that was below that of less experienced employees.  As the complainant was not satisfied with the terms of the contract offered to her in July 2019 she submitted an appeal to the internal consultant’s appeal process.  The appeal was not successful. 

In cross examination the complainant confirmed that the dates of engagement with the respondent, provided in their submission were correct.  She confirmed that in 2018 she had applied for two Assistant Produced roles but was unsuccessful in her application.  She confirmed that she had been described as a researcher in her terms of engagement with the respondent.  However, she stated it was common knowledge that she did work other than that of researcher.

Head of HR

The Head of HR (Content Division) in her testimony described how the respondent had, in early 2018, engaged independent external consultants to conduct a legal review of the freelance/independent contractor population within the organisation.  Following that review the respondent introduced a new policy which established the appropriate categorisation for the future of freelance contractors providing services to the respondent. 

The consultants determined that a 81 people working for the respondent had ‘attributes akin to employment’.  The consultants provided guidance as to how their recommendations should be implemented in a ‘Governing Principles’ document.

The Head of HR described the interaction with the trade unions.  Negotiations took place which were at times difficult.  One union stepped aside during the negotiations.  Eventually, through negotiation, the implementation of the recommendations proceeded.  Contracts of employment were offered to 81 people who had previously been categorised as freelance.  These contracts reflected the pattern of engagement over the previous two years.  Based on that two year period they would be assigned the grade and salary point appropriate to the nature of the work to be performed.  The complainant was one of the people described in the consultant’s report as having “attributes akin to employment”.  She was offered an ongoing contract of part-time employment as a researcher in July 2019.

The Head of HR described in detail the process agreed with the trade unions, the review of invoices conducted, the governing principles of the process, and the appeals process. 

The complainant disputed that the contract offered to her on 31 July 2019 accurately reflected the work she had done, her experience and salary level.  On 12 August 2019 the complainant and her trade union representative met with the Head of HR and the Head of Production.  That meeting did not resolve the issue for the complainant and she lodged on appeal on 02 September 2019.  The appeal board concluded that the contract offered to the complainant reflected the pattern of engagement over the previous two years and that the grade and pay were appropriate to the nature of the work undertaken.  Following the appeal, the complainant accepted, with reservations, the ongoing part-time employment contract effective from 23 September 2019.

In cross examination the Head of HR stated the decision to recruit was a local management decision that then went through an approval process.  She confirmed that the complainant was not required to supply equipment, did not take a financial risk or make a profit from her work and was assigned her hours of work.  She confirmed that the complainant was part of the team working on the specific programme.  In response to a question about the difference between an employee and an independent contractor she stated the difference was the terms on which they were engaged. 

The Head of HR stated that business efficiency required the use of employment contracts, fixed-term contract and independent contractors.  Some issues had arisen with the use of independent contractors and the respondent had arranged the independent review.  Out of 400 case reviews some 81 were found to have ‘attributes akin to employment’.  The 81 were offered employment contracts and 79 accepted.

Head of Production

The Head of Production described his role with the respondent organisation.  He is responsible for overseeing television production in his area and creating opportunities for production.  The main television programme in his area usually runs for eight months of the year.  There are twenty core staff employed and there may be between ten and twenty additional staff required during the year. 

The main television programme depends on commercial segments to generate income which goes directly to the production of the show.  As the production of the main programme requires commercial segments the start of the season is usually only confirmed about one month in advance.  For example, a September start may only be confirmed in August.  The main programme runs on an annual renewal depending on available funding.  The production team includes a producer, an assistant producer and two researchers.

He described the role of the researcher as including a wide range of tasks such as finding and writing topics and distilling information.  The producer and assistant producer were responsible for writing the script for the programme.  Researchers work five days per week, two days on air and three days off air.  He stated that on air days are very busy starting at 09.00am reviewing news and an editorial meeting.  Usually taking a break at 12.30 and rehearsing between 13.30 and 15.00.  The programme went on air from 15.30 to 17.40. Friday’s show was pre-recorded, so the editorial meeting usually started at 09.30.  Most Fridays the team finished early and they could take time if they had worked extra hours earlier in the week.   He stated they did not use a clocking system and people were responsible for all their tasks to be completed on the day.

He stated that before 2019 independent contractors were engaged in production and specific projects.  In 2017 he had lobbied the respondent to set up a pool of people from which staff could be recruited and vetted properly.  As a result, in 2018 various posts were advertised.  The complainant did not apply for the post of researcher when it was advertised. 

In response to a question about the description of the complainant’s freelance post as that of researcher he stated that she was doing the work of a researcher.  He stated that he had 35 years’ experience in television and he did not recognise that the complainant was doing anything more than research work.  He stated that Assistant Producers work at a very high level requiring a broad range of skills.  Freelance researchers were helped to gain experience for possible future advancement, but they did not work at Assistant Producer level.  He confirmed that he had asked the complainant to do work on digital content as she wanted to be a reporter in news.  However, it did not work out as it was too much.  He rejected the suggestion that the complainant was given a role as Digital Content Creator.  He stated that such a role did not exist at that time.  He confirmed there is now such a role in Dublin in the marketing division, but it is paid less.  He stated that Assistant Producers are not content creators. 

The Head of Production stated that time off in lieu was available to employees when they worked additional hours that were approved in advance by their manager.  Similarly, if a freelance contractor got approval in advance to work additional hours then they would include the charge on their invoice.  If a freelance contractor worked on a public holiday, then they would charge for those hours on their invoice.

In cross examination responding to questions about the difference between freelance contractors and PAYE employees the Head of Production confirmed that freelance contractors had their hours of work set by their manager, that the equipment they used was supplied by the respondent and that they did not share in profits.  He stated that the rate paid to freelance contractors was decided between him as Head of Production, HR and Finance.  The rate depended on the budget for the programme and he tried to match people to the fees on offer.

Responding to questions about time off in lieu the Head of Production stated that the complainant’s claim was not realistic.  Additional hours had to be approved in advance by the manager and freelance contractors would then include the additional hours on their invoices.  Daily there was flexibility if someone worked a bit longer they could take time the next day or maybe on Friday afternoon.  He stated that they tried to be flexible and decent about day to day working hours.

When questioned about the 2018 recruitment and the awarding of an independent contract to the complainant the Head of Production stated that the external consultants review was taking place at the same time as they were recruiting for researchers, assistant producers and producer roles.  He had lobbied HR to get permission to employ outside the new pool to create opportunities for all and as a mark of goodwill.  The complainant had the opportunity to apply for a post as a researcher and she choose not to apply.  She did apply for an assistant producer post but was not successful.  Independent contracts were project based and employment contracts were only awarded to people who were successful in the open competition.

Responding to questions about the role of Digital Content Creator the Head of Production stated that the role does not apply in the Content Division.  There is such a role in the sales and marketing area.  He confirmed that in the News Division there is now a digital content role, but he stated that was a very different operation.  News is a separate division with different requirements and way of operating to the Content Division.  When asked about the complainant getting on screen credit as a Digital Content Creator he stated that was not approved and was almost a disciplinary matter.

Responding to questions about the 2018 recruitment he stated the researcher posts were advertised, interviews were held, and 8 successful applicants were in a pool from which they were offered employment contracts.  The complainant did not apply for a researcher post.

Complainant’s Status

The courts have developed and applied several tests over time to ascertain the correct status of a person as either an employee or an independent contractor.  However, in The Minister for Agriculture and Food v Barry & Ors [2009] IR 215 Edwards J was clear that all the various tests are potential aids to identifying the nature of the working relationship, but no single test is definitive.  I considered the following tests before deciding if the complainant was an employee or an independent contractor.

Mutuality of Obligation

If an employment contract is to exist there must be mutuality of obligation between the employer and the employee.  That is, there is an obligation on the employer to give the employee work and an obligation on the employee to carry out the work for the employer.  The requirement of mutuality of obligation was described in The Minister for Agriculture and Food v Barry [2009] IR 215 as follows:

“The requirement of mutuality of obligation is the requirement that there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer.  If such mutuality is not present, then either there is no contract at all or whatever contract there is must be a contract for services or something else, but not a contract of service.”

Apart from the one fixed-term contract (25 November 2013 to 30 November 2014) the complainant was engaged by way of an Independent Contractor Agreement.  Each such agreement stated “(The respondent) hereby engages the Contractor to provide the Services to (respondent) and the Contractor hereby agrees to provide the Services upon the terms and conditions set out in this Agreement”.  Each agreement, at paragraph 3.1, included a commencement and termination date and in Schedule 1 stated as Services to be provided by the Contractor “To provide the services of Researcher to the (name of programme) as required for and on behalf of (respondent), as may be required for the period as set out in Clause 3.1 of this Agreement”. 

Based on the evidence at the hearings it was clear that during the periods specified the complainant was required to work full time for the respondent on the named programme for which she was paid a fee by the respondent.  Although a strict interpretation of the phrase “as may be required” could be that the respondent was not obliged to provide work during the whole specified period, the reality was, based on the evidence, that the respondent expected the complainant to work full time on the named programme during the specified period and paid her fees as provided for in the agreement.

Control

This test came from the concept of master and servant relationships.  The master having the right to direct the servant as to what work was to be done and how it was to be done.  While at one time this test was the principal test used to determine the status of employee or independent contractor of a person it is now regarded as only one of several relevant tests to be used.  The Supreme Court, Keane J, in Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare [1997] IESC 9 stated:

“It is, accordingly, clear that, while each case must be determined in the light of its particular facts and circumstances, in general a person will be regarded as providing his or her services under a contract of service and not as an independent contractor where he or she is performing those services for another person and not for himself or herself. The degree of control exercised over how the work is to be performed, although a factor to be taken into account, is not decisive. The inference that the person is engaged in business on his or her own account can be more readily drawn where he or she provides the necessary premises or equipment or some other form of investment, where he or she employs others to assist in the business and where the profit which he or she derives from the business is dependent on the efficiency with which it is conducted by him or her.”

The complainant gave evidence about her normal work arrangements.  She worked at the respondent’s premises along with employees of the respondent.  Equipment necessary for her work was provided by the respondent.

Based on the evidence at the hearings, I am satisfied that the complainant provided all the services personally for the respondent, she worked in compliance with the directions of her manager, she did not employ others to do her work for her, she did not provide her own equipment or premises and she was not engaged in business on her own account.

Integration

This test emerged from situations where it was thought the level of control was of less significance due to the skill required for an employee’s work.  The test was applied by Carroll J in Re Sunday Tribune Ltd [1984] IR 505 where she held that the control test was not the sole test to be applied in deciding the status of the relationship. Carroll J held:

“The Court must look at the realities of the situation in order to determine whether the relationship of employer and employee in fact exists, regardless of how the parties describe themselves (see Ferguson v. Dawson and partners CA 1976 1 W.L.R. 1213).”

Carroll J in her decision referred to Beloff v Pressdram Ltd [1973] 1 ALL ER 241, quoting from Ungoed-Thomas J:

“"It thus appears, and rightly in my respectful view, that the greater the skill required for an employee's work, the less significant is control in determining whether the employee is under a contract of service. Control is just one of many factors whose influence varies according to circumstances. In such highly skilled work as that of the plaintiff it seems of no substantial significance. The test which emerges from the authorities seems to me, as Denning L.J. (in Stevenson Jordan & Harrison Ltd. v Macdonald [1952] 1 T.L.R. 101) said, whether on the one hand the employee is employed as part of the business and his work is an integral part of the business, or whether his work is not integrated into the business but is only accessory to it or, as Cook J. expressed it, the work is done by him in business on his own account."

Carroll J held that one of the claimant’s satisfied the integration test as described above and was employed under a contract of service although she had been described as an independent contractor from whom income tax was not deducted under the P.A.Y.E system.

I am satisfied, based on the evidence, that the complainant was not in business on her own account, that she worked under the direction of her manager each week on the production of the programme for the period stated in the documents provided to her by the respondent.  Her work involved research that was required to produce the programme each week.  In my opinion the complainant’s work was an integral part of the business of the respondent.

Written Agreement

Apart from one fixed-term contract (25 November 2013 to 30 November 2014) when employed as a Programme Department Assistant the complainant at all other times was described as a freelance researcher and issued with an independent contractor agreement by the respondent.  I note that the complainant when working as a freelance researcher was not on the P.A.Y.E. system and made her own tax returns.  The complainant was aware of the type of agreement she accepted even though she told the respondent that she wanted a contract of employment.

In the Supreme Court decision in Castleisland Cattle Breeding Society Limited v. Minister for Social and Family Affairs, (Unreported, Supreme Court, 15th July 2004) Geoghegan J. stated at p. 15: 

“The wording of a written contract still remains of great importance. It can, however, emerge in evidence that in practice the working arrangements between the parties are consistent only with a different kind of contract or at least are inconsistent with the expressed categorisation of the contract.”

The importance of a written agreement was further considered in ESB v Minister for Social Community and Family Affairs [2006] IEHC 59 by Gilligan J who stated the following in his conclusions:

“I take the view that the issue which the Appeals Officer had to decide in this case is to be approached on the basis that the written agreement existing between the parties is of considerable importance and has to be given due consideration but is not conclusive in its own right and therefore, following Keane J. in Henry Denny & Sons (Ireland) Limited t/a Kerry Foods v. Minister for Social Welfare [1998] 1 I.R. 34, the particular facts and circumstances of the case have to be considered.

In general, a person will be regarded as providing his or her services under a contract of service and not as an independent contractor where the person is performing the services for another person and not for himself. The degree of control exercised over how the work is to be performed is a factor to be taken into account but is not decisive. Factors to be considered include who provides the necessary premises and equipment or some other form of investment, whether others are employed to assist in the business, and whether the profit derived is dependent on the efficiency of the person concerned.”

I am satisfied, on the evidence adduced, that the complainant worked at the respondent’s premises or on location, with equipment provided by the respondent and did not invest in the business.  She was paid the amount stated in the agreement for work as a researcher under the direction of her manager.

Finding

Having carefully considered the evidence of both parties, the submissions and the relevant tests as set out above I am satisfied that the complainant was incorrectly classified as an independent contractor researcher when engaged in September 2018.  She should have been classified as an employee working under a fixed-term contract of service from 06 September 2018 to 28 April 2019.  Her period of engagement was extended twice from 29 April to 24 May 2019 and again from 27 May to 19 July 2019.  I find that there was a continuous period of employment from 06 September 2018 to 19 July 2019.  The complainant submitted her complaint to the Workplace Relations Commission on 11 November 2019.  The cognisable period is from 12 May 2019 to 11 November 2019. 

To come within the protection of the Act a person must be employed on a fixed-term contract of service.  That is a contract “where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event” (section 2).  The complainant was issued with independent contractor terms of engagement including a start and end date and/or reference to providing service for a specific programme.  Having considered the evidence and the terms of engagement issued to the complainant I am satisfied that she was employed on a fixed-term contract of service from 06 September 2018 to 19 July 2019.  Her complaints under the Act were received on 11 November 2019, within the relevant six month time limit.

Section 9 - Contract of Indefinite Duration Claim

The complainant submitted that she was entitled to a contract of indefinite duration.  Responding to a question from me the claim was described as going back four years from the date the complaint was submitted to the Workplace Relations Commission, that is 11 November 2019. 

As stated earlier in addition to providing for equal treatment for fixed-term workers the Framework Agreement and the Act aims to prevent abuse using successive fixed-term contracts.  The complainant claims that she was entitled to a contract of indefinite duration by operation of law.  Section 9 of the Act provides as follows:

9.— (1) Subject to subsection (4), where on or after the passing of this Act a fixed term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.

(2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.

(3) Where any term of a fixed-term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.

(4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.

(5) The First Schedule to the Minimum Notice and Terms of Employment Acts 1973 to 2001 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous.

In my opinion a claim of entitlement to a contract of indefinite duration by operation of law must be assessed on the individual contract dates and whether the requirements of Section 9 have been established.  I have found that the complainant was employed on a fixed-term contract from 06 September 2018 to 19 July 2019.  By 11 November 2019 the complainant was no longer employed on a fixed-term contract.  The complainant had been offered and accepted, with reservations, an “ongoing” part-time contract of employment in October 2019 (backdated to 23 September 2019).  The question now to be decided is whether the complainant was employed on two or more continuous fixed-term contracts with an aggerate duration of four years or more at the time she was last employed on a fixed-term contract. 

Section 9 (1) and (2) of the Act refers to ‘continuous’ employment and fixed-term contracts respectively.  The usual meaning of continuous is without interruption.  It cannot be said that the complainant’s engagement with the respondent was without interruption.  However, Clause 5 of the Framework Agreement on Fixed-Term Work, as annexed to Directive 1999/70/EC, refers to ‘successive’ fixed-term contracts.  The usual meaning of successive is one following the other. 

The difference between the wording of Section 9 of the Act and Clause 5 of the Framework Agreement was considered by the Labour Court in Department of Foreign Affairs v A Group of Workers [2007] 18 E.L.R. 332.  The Court noted:

“there appears, at first sight, to be a conflict between S 9 of the Act and Clause 5 of the Framework Agreement.  This arises from the fact that Clause 5 of the Framework Agreement applies to fixed-term contracts which are successive thus giving it a considerably wider scope than if its application was confined to employment relationships which were continuous.  It seems to the Court that there is a significant qualitive difference between the concept of a continuous employment relationship and one which is successive.  The former connotes an employment relationship without interruption whereas the latter indicates a series of relationships which follow each other but can be separated in time.

It will be noted that Clause 5.2(a) of the Framework Agreement permits Member States to define, inter alia, the conditions under which fixed-term contracts will be regarded as successive.  This provision, however, could hardly authorise a Member State to define the concept of successive employment as meaning something which is qualitatively different and narrower in scope than that term would normally bear.”

In the above case the Labour Court relied on the decision of the European Court of Justice in Adeneler Case C-212/04, [2006] ECR l-6057 where the Court ruled that Clause 5 of the Framework Agreement was to be interpreted as ‘precluding a national rule under which only fixed-term employment contracts that are not separated from one another by a period of time longer than 20 working days are to be regarded as successive’.

In the instant case the complainant worked for the respondent on several occasions between 2012 and 2019 (before her current ongoing part-time contract).  Each engagement was separated from the next by different periods of time.  The complaint form contains different dates as to when the complainant first worked for the respondent, April 2012 and September 2013, are included in the form.  However, from the submissions it appears the complainant’s engagement covered the following periods:

·       02 April 2012 to 30 June 2013 – classified as an independent contractor researcher

·       25 November 2013 to 30 November 2014 – fixed-term employee covering maternity leave

·       17 August 2015 to 30 April 2017 – classified as an independent contractor researcher

·       11 September 2017 to 27 May 2018 – classified as an independent contractor researcher

·       06 September 2018 to 19 July 2019 – classified as an independent contractor researcher

It is clear from the above that this case concerns not an employment relationship without interruption but rather a series of relationships which follow each other but separated in time.

At no stage was the separation between the complainant’s engagements with the respondent less than three months.  The complainant was employed on a fixed-term contract to cover maternity leave for one year from November 2013 to 2014.  The complainant confirmed that following that fixed-term employment she was employed by another organisation.  Her next engagement as a researcher was eight and a half months later.  In 2017 she was again employed elsewhere.  The respondent stated that there was no commitment to or guarantee of future employment at the end of each period of engagement as an independent contractor as the programme she had on since 2015 ran on an annual renewal basis depending on available funding.

The Labour Court in Department of Foreign Affairs v A Group of Workers upheld the finding of the Rights Commissioner that the complainants were employed on continuous contracts for the purpose of Section 9 of the Act.  The Court considered the period of service of the employees and whether that service had been continuous or not (S 9(5)) in the context of the First Schedule of the Minimum Notice and Terms of Employment Act, 1973 which provides at point 3:

A lay-off shall not amount to the termination by an employer of his employee’s service.

The periods between contracts were held to be periods of lay-off.  The respondent had accepted that on each occasion on which the complainant’s contracts terminated it was reasonable in the circumstances for it to believe that the cessation of the employment would not be permanent.  It was also the belief of the complainants that they would be re-employed.  The complainants remained on a panel for temporary work and were recalled based on their seniority as work became available.

In Beary v The Revenue Commissioners FTD112 the Labour Court again considered a claim of entitlement to a contract of indefinite duration in the context of a series of fixed-term contracts.  The Court in considering the definition of ‘continuity of service’ and ‘computable service’ as set out in the First Schedule of the Minimum Notice and Terms of Employment Act, 1973, observed:

“The fundamental effect of this provision is that all periods of employment are to be regarded as continuous unless broken by dismissal or resignation.  Hence successive periods of employment, which are not continuous in the literal sense, because they are broken by, for example, lay-off or authorised absence, are deemed to be continuous.  It is accordingly clear that the word ‘continuous’ as used in the Act, has a special meaning which is different to its ordinary or dictionary meaning.  As so defined the word can, in certain circumstances, have a meaning more akin to the ordinary meaning of the word successive.”

The Labour Court went on to consider if the complainant was employed on a series of separate contracts, each of which was terminated by dismissal, or whether the period between contracts could be regarded as lay-offs.  The term ‘lay-off’ for the purposes of the Minimum Notice and Terms of Employment Act, 1973 has the same definition as in the Redundancy Payments Act, 1967, section 11 (1) as follows:

Where after the commencement of this Act an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and –

(a)    It is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b)    the employer gives notice to that effect to the employee prior to the cessation,

that cessation of employment shall be regarded for the purposed of this Act as lay-off

The Labour Court in considering the above definitions stated:

“…the expiry of a fixed-term contract without its renewal is a dismissal.  Hence, on the literal application of the First Schedule of the Act of 1973 there could be no continuity between one fixed-term contract and the next unless it was immediately renewed.  In the Court’s view such a result would be at variance with the object pursued by the Directive and could not be adopted.

The alternative and better approach is to construe the First Schedule of the 1973-2005 Act so as to produce the result envisaged by the Directive.  In that regards it would seem that the concept of successive employment arises where a person is engaged to do the same job intermittently.  Hence it could reasonably be said that where a person’s employment is terminated because there is no longer work available for him or her to do, and it is envisaged at the time of the terminations that his or her service will be required again in the future, and they are in fact re-engaged, the employment could be regarded as continuous.”

The Labour Court held, on the specific facts of the case, including the dates of the fixed-term contracts and his inclusion on a panel from which he was re-employed, that the complainant had been employed on a succession of fixed-term contracts and that all the breaks between the termination of one contract and the commencement of another, should properly be regarded as period of lay-off.  However, the Court held that there were objective grounds which justified the respondent’s failure to appoint the complainant to a permanent full-time clerical post.

Application to the instant case

S 9 (2) of the Act requires two things, first there must be continuous fixed-term contracts and second the aggerate duration of such contracts shall not exceed four years.   Except for the fixed-term contract from 25 November 2013 to 30 November 2014 all the complainant’s other engagements with the respondent were classified as independent contractor engagements.  The complainant’s engagement covered the following periods:

·       02 April 2012 to 30 June 2013 – classified as an independent contractor researcher

·       25 November 2013 to 30 November 2014 – fixed-term employee covering maternity leave

·       17 August 2015 to 30 April 2017 – classified as an independent contractor researcher

·       11 September 2017 to 27 May 2018 – classified as an independent contractor researcher

·       06 September 2018 to 19 July 2019 – classified as an independent contractor researcher

The complainant’s first engagement as an independent contractor researcher on a specific programme commenced on 02 April 2012.  That engagement ended on 30 June 2013 and the complainant was not engaged again to work on that programme. That engagement ended as there was no longer work available on that programme.  There was no commitment when that work ended that the complainant would be re-engaged.

The complainant was next employed on a fixed-term contract as a Programme Department Assistant to cover a period of maternity leave, from 25 November 2013 to 30 November 2014.  The complainant’s employment came to an end when the employee for whom she was providing cover returned to work and the respondent no longer had work for her to do in that capacity.  There was no commitment to or expectation of further employment in this role when the contract was terminated.

I am satisfied that the complainant has not established that there was continuous service between 02 April 2012 and 30 November 2014.  The complainant was employed in different roles on each occasion and the specific purpose of each contract was completed when the contracts were terminated. 

The facts of this case are quite different to the facts of Department of Foreign Affairs v A Group of Workers and Beary v The Revenue Commissioners.  Here the complainant had no commitment from the respondent to anything other than the specific terms of the engagement / contract, she was not on a panel for future vacancies.

The complainant was next employed elsewhere and had no further engagement with the respondent for eight and a half months. 

In August 2015 the complainant was engaged by the respondent as an independent contractor researcher.  The complainant was employed from 17 August 2015 to 30 April 2017 as a researcher on two different programmes.  She was also engaged for four days in May 2017 for another programme.  I am satisfied that this engagement terminated when the specific programme ended its season and there was no commitment to future engagement as a researcher.

The complainant next worked for another company for several months.

The complainant was engaged as an independent contractor researcher again on 11 September 2017 to work on a new season of one of the programmes she had worked on in 2015/16 and 2016/17.  This engagement continued until 27 May 2018.

The complainant was next engaged as an independent contractor researcher from 06 September 2018 until 19 July 2019 to work on another season of one of the programmes she had worked on in 2015/16, 2016/17 and 2017/28. 

The complainant was engaged as an independent contractor researcher for the same programme in the seasons 2015/16, 2016/17, 2017/18 and 2018/19 for different periods of time.  The breaks that occurred between August 2015 and July 2019 were in all cases more than three months in duration, but the length of those breaks is not conclusive that employment was not continuous if, following the reasoning of the Labour Court in Department of Foreign Affairs v A Group of Workers and Beary v The Revenue Commissioners, those breaks could be considered as periods of lay-off.  However, I am satisfied that at the end of each period the engagement terminated as there was no further work for the complainant on the specific programme she had been working on and there was no commitment to future engagement.  This is particularly so in 2018 when the respondent had created a pool or panel of researchers for future work and the complainant had not applied for that researcher post. 

I find the complainant has not established that she was employed on two or more continuous fixed-term contracts between August 2015 and July 2019.  Each engagement terminated as there was no further work for the complainant as a researcher when the programme season ended and there was no commitment to future engagement. In addition, the aggregate duration of the contracts did not exceed 4 years. The aggerate duration of the contracts between 17 August 2015 and 19 July 2019 is 3 years and 15 weeks.  There was no breach of Section 9 (2) of the Act.  I find the complaint under Section 9 of the Act is not well founded and the complainant has not established an entitlement to a contract of indefinite duration.

Section 6 – Less Favourable Treatment Claim

The complainant claims that she was treated less favourably in respect of her conditions of employment than a comparable permanent employee.  Specifically, she claims she was treated less favourably in respect of pay, hours of work, time off in lieu, holidays, public holidays, privilege days, sick leave, carers leave, maternity leave, parental leave, force majeure leave, pensions, permanent health insurance, death in service benefits, incremental progression, career progression, access to facilities for employees, rights under the Organisation of Working Time Act, redundancy, medical insurance and occupational injuries.  Further, she claims there was no objective grounds for the less favourable treatment.  The respondent rejected the claims of less favourable treatment.

Section 6 of the Act provides as follows:

6.— (1) Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.

(2) If treating a fixed-term employee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

(3) A period of service qualification relating to a particular condition of employment shall be the same for a fixed-term employee as for a comparable permanent employee except where a different length of service qualification is justified on objective grounds.

(4) For the avoidance of doubt, the reference in this section to a comparable permanent employee is a reference to such an employee either of the opposite sex to the fixed-term employee concerned or of the same sex as him or her.

(5) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a fixed-term employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable permanent employee.

(6) The extent to which any condition of employment referred to in subsection (7) is provided to a fixed-term employee for the purpose of complying with subsection (1) shall be related to the proportion which the normal hours of work of that employee bears to the normal hours of work of the comparable permanent employee concerned.

(7) The condition of employment mentioned in subsection (6) is a condition of employment the amount of benefit of which (in case the condition is of a monetary nature) or the scope of the benefit of which (in any other case) is dependent on the number of hours worked by an employee.

(8) For the avoidance of doubt, neither this section nor any other provision of this Act affects the operation of Part III of the Organisation of Working Time Act 1997.

The complainant submitted that the comparable permanent employees were other programme/production grades within (the respondent), specifically others in the Assistant Producer grade.  Comparable permanent employee is defined in Section 5 of the Act as follows:

5.— (1) For the purposes of this Part, an employee is a comparable permanent employee in relation to a fixed-term employee if—

(a) the permanent employee and the relevant fixed-term employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,

(b) in case paragraph (a) does not apply (including a case where the relevant fixed-term employee is the sole employee of the employer), the permanent employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant fixed-term employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable permanent employee in relation to the relevant fixed-term employee, or

(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant fixed-term employee and one of the conditions referred to in subsection (2) is satisfied in respect of those employees, and references in this Part to a comparable permanent employee in relation to a fixed-term employee shall be read accordingly.

(2) The following are the conditions mentioned in subsection (1)—

(a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,

(b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and

(c) the work performed by the relevant fixed-term employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

As set out at S 2(a) above to establish a valid comparison ‘both of the employees perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work’.  The evidence of the respondent was that the complainant was never engaged as an Assistant Producer.  The complainant acknowledged that in all the terms of engagement documents she received she was described as a researcher.  The complainant submitted that she did work at a higher level and that at one point was accredited as being a Digital Content Creator.  I can accept that the complainant did from time to time perform some duties that were outside the job description of a researcher but that is not enough to establish that she was working at the Assistant Producer grade.  Having considered the submissions and the evidence presented I am satisfied that the comparator is a permanent employee at researcher grade. 

The respondent provided copies of the invoices submitted by the complainant as an independent contractor.  The complainant submitted an invoice each fortnight and I note that she deducted days when she was unable to work due to illness and when she took leave and included claims for extra days worked or overtime worked.  The following are examples:

Invoice 03/12/2018 – Rate €850 per week – minus 2 holiday days and 1 sick day

Invoice 14/12/2018 – Rate €850 per week – minus two sick days

The complainant claims she has accrued 166 days of time off in lieu for time worked during the whole period of her engagement with the respondent.  She claims unlike a permanent employee she was not provided with time off in lieu that she had accumulated.  The respondent rejected the claim and stated that for all employees, permanent or fixed-term, and contractors, overtime leading to time off in lieu must be approved in advance by the relevant manager and employees would not be permitted to build up significant amounts of time.  There is a direct conflict between the parties on this point.  However, I note from the invoices submitted that on several occasions the complainant did claim for overtime hours worked or extra days and that those invoices were approved and paid.  The following are examples:

Invoice 18/04/2019 – plus extra 4 hours worked on Tuesday evening 16/04/2019

Invoice 22/05/2018 – plus half day Saturday 19/05/2018

Invoice 08/05/2018 – plus 4 hours Friday 04/05/2018 plus Sat (1 day) & Sun (1.5 days)

Invoice 12/03/2018 – plus one extra day Saturday 03/03/2018

Invoice 25/09/2017 – plus one extra day

As the complainant could and did claim for extra hours or days worked I prefer the evidence of the respondent that time off in lieu for all employees and contractors had to be approved in advance and was managed in a way that did not allow a large accumulation of time.  I do not accept that the complainant accrued 166 days of time off in lieu. 

I have already found that the complainant was wrongly classified as an independent contractor and should have been classified as a fixed-term employee.  As she was classified as an independent contractor she was not provided with paid holidays or compensated for public holidays nor did she receive other benefits that apply to permanent researchers such as paid sick leave, permanent health insurance or medical insurance.  I am satisfied the complainant has established that she was treated less favourably than a comparable permanent researcher.  Less favourable treatment may be permitted Section 6 (2):

(2) If treating a fixed-term employee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

The respondent acknowledged that the terms of engagement of independent contractors and fixed-term employees were different, but it did not provide credible grounds for the less favourable treatment of the complainant as compared to a permanent researcher.  It seems to me that the respondent permitted a situation to develop where there was no real examination, at a central management level, of the circumstances in which people were offered terms of engagement as independent contractors by sectional management, when they should have been offered an employment contract.  I am satisfied the complainant should have been classified as a fixed-term employee as a researcher between 06 September 2018 and 19 July 2019 and should have had the benefit of paid annual leave and public holidays and other benefits applicable to permanent researchers employed by the respondent.  I find the complaint of less favourable treatment as compared to a permanent researcher is well founded. 

Sections 8 – Written Statement Claim

The complainant claims the respondent has failed in its statutory duty to provide a written statement as required by section 8(2) of the objective grounds justifying the renewal of a fixed-term contract.  The complainant submits that the purpose of section 8 is not just to ensure that a fixed-term employee is informed of the reason why his or her contract is being renewed.  Reading the section in full it is intended to ensure that the employer definitively commits itself, at the point at which the contract is being renewed, to the grounds upon which it will rely if subsequently pleading a defence under section 9(4).

The respondent submits that the when the complainant was employed on a fixed-term contract she was provided with a statement in compliance with section 8(1) and when engaged as an independent contractor the Act did not apply to her. 

Having considered the submissions I am satisfied that the complainant was provided with terms of engagement as an independent contractor that specified the objective condition determining the contract.  I have found that the complainant was not employed on continuous fixed-terms contracts and therefore there was no breach of section 8(2) of the Act.

Section 10 – Access to Training Claim

The complainant claims she was not facilitated with access to appropriate training opportunities to enhance her skills, career development and occupational mobility.  There was no credible evidence presented that supported this claim.  I find this claim is not well founded.

Section 12 – Voidance of Certain Provisions Claim

The complainant claims that by issuing terms of engagement as an independent contractor rather than issuing a fixed-term contract of employment the respondent sought to exclude and limit the application of the Act.  I am satisfied on the balance of probabilities that it was not official policy to exclude or limit the application of the Act but, I am satisfied that the respondent allowed a practice to develop, without proper investigation, where terms of engagement as independent contractors were issued instead of fixed-term contracts of employment.  This practice put the complainant at a disadvantage as a researcher as compared to permanent researchers employed by the respondent.

The Protection of Employees (Fixed-Term Work) Act gives effect to Council Directive 1999/70/EC, the Fixed-Term Work Directive.  As it arises from EU law, redress must be ‘effective, dissuasive and proportionate’.  Having regard to all the circumstances I consider it just and equitable to require the respondent to pay to the complainant compensation of €17,000.00 for the breach of Section 6 of the Act.

CA-00032145-004

Complaint brought under Section 6 of the Payment of Wages Act, 1991.

The complainant claims that the respondent failed to provide her with a statement of wages and deductions from wages in accordance with Section 4 of the Act.  Further she claims that there was a deficiency in the payments made to her by the respondent and said deficiency amounts to deductions such as are prohibited under Section 5 of the Act.  The complainant submits that she is entitled to recover monies owing to her by way of salary, increments, pay for holidays, public holidays, sick leave and time off in lieu.  The complainant did not provide any details of the amount of the monies she claims to be owing to her.

Legislation – Payment of Wages Act, 1991

5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

 (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing

to it.

(2), (3), (4), (5) …

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

It is necessary to decide what wages were properly payable by the employer to the employee.  The complainant submitted her complaint to the Workplace Relations Commission on 11 November 2019.  The cognisable period, as provided in Section 41(6) of the Workplace Relations Act, 2015, is 12 May to 11 November 2019.  In that six month period the complaint worked for the respondent between 12 May and 19 July 2019 and again from 23 September to 11 November 2019.

In the period from May to July the complainant was classified as an independent contractor researcher but, as I have already decided, she was an employee on a fixed-term contract of employment.  As she was classified as an independent contractor she submitted invoices each fortnight for the agreed rate, which was €1,700.00.  There is no dispute between the parties that all the invoices submitted by the complainant were paid in full by the respondent.  The claimant claims that a deficiency in payments amounts to deductions contrary to Section 5 of the Act.  The complainant is claiming she should have been paid at a higher rate.

The complainant was always graded as a researcher and the wages properly payable is the rate agreed and accepted between the parties.  In respect of annual leave and public holidays the complainant has brought a separate claim under the Organisation of Working Time Act.  I find that the claim of a breach of Section 5 of the Act in the period 12 May to 19 July 2019 is not well founded.

The complainant did not receive a statement of wages in this period because of she was not considered to be an employee but rather an independent contractor and therefore there was a breach of Section 4 of the Act.

In the period from September to November 2019 the complainant was employed as a researcher on an ‘ongoing’ part-time contract of employment.  The respondent described an ongoing contract as one where the employee has employment for each production season, usually the complainant will work from September to May the following year.  In response to a question from me the respondent clarified that an ongoing contract means the complainant will be working between September and May each year either on the programme she has worked on since 2015 or an alternative if funding for that programme is not available.  In effect the future employment of the complainant is not solely dependent on the funding of one particular programme.

The complainant had accepted the ongoing contract, with reservations, in October 2019 (backdated to September 2019).  The terms of the contract offered were established in line with the agreement, between the respondent and trade union representatives, that followed from the review of independent contractors. 

The complainant claims her terms and conditions of employment did not reflect her level of experience or length of service.  Detailed documents were submitted contending that the method used to calculate the Full Time Equivalent (FTE) for her part-time contract were incorrect.  The respondent used a base of 2288 hours per year based on a 44 hour week.  The complainant submitted that this was a gross figure and the correct base, taking account of annual leave, public holidays and sick leave, should have been 1806.  The complainant is claiming she should have been paid at a higher rate and on a different scale.  While there is some merit in the submission about the method of calculating the appropriate salary, it must be acknowledged that the complainant’s ongoing contract provides for paid annual leave, public holidays, paid sick leave, pension and health insurance and other benefits which must be a factor in considering the totality of the contract.

The Payment of Wages Act is not intended to facilitate a claim for a higher grade or salary.  The terms of an employment contract are agreed between the employer and employee and changes are normally negotiated directly between the parties.  The wages that are properly payable to the complainant are as stated in her contract of employment.  I am satisfied that there was no unlawful deduction from wages in the period from 23 September to 11 November 2019.  There was on administrative error on 05 November 2019 but that was corrected in the following pay period.  I find the claim under Section 5 of the Act in respect of the period 23 September to 11 November 2019 is not well founded.

CA-00032145-003

Claim brought under Section 27 of the Organisation of Working Time Act, 1997.

The complainant claims that the respondent did not provide her with adequate rest periods, did not allow her breaks of 15 or 30 minutes at the appropriate times, required her to work more than an average of 48 hours in a seven day period and did not provide her with proper notice of starting and/or finishing times.  It is alleged the respondent therefore breached Sections 11, 12, 15 and 17 of the Act.  In addition, the complainant claims that she was denied paid annual leave and public holidays in breach of Sections 19 and 21 of the Act.  The complainant asserted that she was an employee of the respondent at all material times.

The respondent rejects the above claims as the Act did not apply to an independent contractor and her current contract contains specific sections dealing with hours of work and holidays. 

The time for the presentation of complaints under the Act is set out in Sections 41(6) of the Workplace Relations Act, 2015 as follows:

Section 41(6) Subject to subsection (8), 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.

The complaint form was received by the Workplace Relations Commission on 11 November 2019 and consequently the period to be considered is from 12 May to 11 November 2019.  However, the complainant submits that in respect of annual leave the domestic legislation must be considered in the context of European legislation which precludes the automatic loss of the period of paid annual leave where the worker does not ask to exercise their right.

Claims under Sections 11,12,15 and 17 of the Act

In the period from 12 May to 19 July the complainant was classified as an independent contractor.  As set out above I have decided she was employed on a fixed-term contract of employment at that time.  As an employee she was therefore entitled to the rest periods, breaks, weekly maximum working hours and notice of start and finish time as required by the Act.  The complainant in her evidence described her working day as did the Head of Production.  It seems to me, based on the evidence, that while there was no detailed recording of working hours per day there was some flexibility about start and finish times which could have benefits for either party.  It is clear from the copies of the invoices provided to me that the complainant did work authorised additional hours from time to time.  When she did so she submitted an invoice for those extra hours and she was paid accordingly.  I am satisfied, on the balance of probabilities, that the claim of breaches of Sections 11, 12, 15 and 17 in the period 12 May to 19 July 2019 are not well founded.

In the period from 23 September to 11 November 2019 the complainant was employed on an ongoing contract of employment.  The details of the hours of work are set out in clause 7 of the contract.  No evidence was provided to me of breaches of Sections 11. 12. 15 or 17 of the Act between 23 September and 11 November 2019.  I find that the claim in respect of breaches of Sections 11, 12, 15 and 17 between 23 September and 11 November 2019 is not well founded. 

Claims under Sections 19, and 21 of the Act.

The complainant was an employee between 12 May and 19 July 2019 employed on a fixed-term contract of employment.  An employee is entitled to annual leave as provided for in Section 19:

19.— (1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an 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 he or she works at least 117 hours, or

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

Provided that if more than one of the preceding paragraphs is applicable in the case

concerned and the period of annual leave of the employee, determined in accordance

with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

And public holidays as provided for in Section 21:

21.— (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

The complainant did not receive any paid annual leave for her period of employment between 12 May and 19 July 2019.  She did not receive payment for untaken annual leave when her employment terminated in July 2019.  There was one public holiday in the relevant period for which the complainant did not receive any payment or compensation.  Her complaints for the period 12 May to 19 July 2019 are well founded. 

Since 23 September 2019 the complainant has been employed on an ongoing contract of employment which includes provision for paid annual leave and public holidays.  There was no complaint under Sections 19 and 21 in relation to the period of employment from 23 September 2019.

The complainant cited the judgements of the CJEU in Max-Planck-Gesellschaft zur Förderung der Wissenschaften eV v Tetsuji Shimizu C-684/16 and King v The Sash Window Workshop Ltd C-214/16 in support of the submission that she was entitled to paid annual leave for the full period of her employment.  As already established the complainant was employed on a fixed-term contract from 06 September 2018 to 19 July 2019.  The claim is for annual leave for the whole period of her employment as a fixed-term employee.

The statutory leave year runs from 01 April to 31 March.  Complaints in relation to leave for the year ending on 31 March 2019 must be submitted within six months from that date.  The complaint was submitted on 11 November 2019 so outside the time limit.  However, the complainant submits that the Act must now be interpreted in accordance with the above decisions and that she was entitled to annual leave for the period 06 September 2018 to 19 July 2019 or payment in lieu on termination of her contract.

In King v The Sash Window Workshop case Mr King had worked on the basis of a ‘self-employed commission only contract’ from 1999 until he retired in 2012.  Under the terms of that contract if he took annual leave, it was unpaid.  On retirement he made a claim for holiday pay for leave accrued but untaken in his final year, leave taken between 1999 and 2012 but unpaid and payment in lieu of leave accrued but untaken throughout the whole period 1999 to 2012.  The Employment Tribunal and the Court of Appeal in the UK held that Mr King was a ‘worker’ within the meaning of Directive 2003/88.  Under UK legislation, implementing Directive 2003/88 a worker was not entitled to carry over periods of untaken annual leave into a new holiday year.  Applying that provision of the UK legislation Mr King had lost his entitlement in respect of annual leave carried over as it was time-barred.  The CJEU held:

The Max-Planck-Gesellschaft zur Förderung der Wissenschaften eV v Tetsuji Shimizu case relates to a refusal to pay an allowance in lieu of paid annual leave not taken on the date of the termination of the employment relationship between the parties.  The Court noted that in earlier judgements it had held that Article 7(1) of Directive 2003/88 does not in principle preclude national legislation, which lays down conditions for the exercise of the right to paid annual leave expressly conferred by the directive, including even the loss of that right at the end of a leave year or of a carry-over period, provided, however, that the worker who has lost his right to paid annual leave has actually had the opportunity to exercise the right conferred on him by the directive (judgment of 20 January 2009, Schultz-Hoff and Others, C‑350/06 and C‑520/06, EU:C:2009:18, paragraph 43).  It further noted that it is settled case-law of the Court that, when national courts apply domestic law, they are bound to interpret it, so far as possible, in the light of the wording and the purpose of the directive concerned to achieve the result sought by the directive.  The CJEU held:

2. In the event that it is impossible to interpret national legislation such as that at issue in the main proceedings in a manner consistent with Article 7 of Directive 2003/88 and Article 31(2) of the Charter of Fundamental Rights, it follows from the latter provision that a national court hearing a dispute between a worker and his former employer who is a private individual must disapply the national legislation and ensure that, should the employer not be able to show that it has exercised all due diligence in enabling the worker actually to take the paid annual leave to which he is entitled under EU law, the worker cannot be deprived of his acquired rights to that paid annual leave or, correspondingly, and in the event of the termination of the employment relationship, to the allowance in lieu of leave not taken which must be paid, in that case, directly by the employer concerned.

There is no dispute between the parties that in the period 06 September 2018 to 19 July 2019 the complainant did not receive paid annual leave.  The respondent’s position is that the complainant was an independent contractor and that the Act does not apply as she was not an employee and under the terms of her contract was not entitled to paid annual leave.  I have decided that the complainant was an employee employed on a fixed-term contract from 06 September 2018 to 19 July 2019 and she is therefore entitled to paid annual leave.  When the contract terminated in July 2019 the complainant was not paid in lieu of untaken annual leave. Her complaint was received by the Workplace Relations Commission on 11 November 2019 and applying the time limits for receiving complaints, contained in the Workplace Relations Act, 2015, her complaint in relation to the period 06 September 2018 to 11 May 2019 is out of time.  While the period 12 May to 19 July 2019 is within the time limit.   The complainant submits, based on the CJEU decisions above, that in these circumstances the domestic law must be disapplied.  In this context reference was made to the CJEU decision in Minister for Justice and Equality v Workplace Relations Commission C-378/17.

Having carefully considered the submissions, written and oral, I am satisfied the complainant was deprived of her right to paid annual leave when she was employed on a fixed-term contract between 06 September 2018 and 19 July 2019 and that she did not receive a payment in lieu of the annual leave when her contract was terminated.  The CJEU in King v The Sash Window Workshop Ltd held that “Member States may not derogate from the principle flowing from Article 7 of Directive 2003/88 read in the light of Article 31(2) of the Charter, that the right to paid annual leave acquired cannot be lost at the end of the leave year and/or of a carry-over period fixed by national law, when the worker has been unable to take his leave (see, to that effect, judgment of 29 November 2017, King, C‑214/16, EU:C:2017:914, paragraph 56)”

The complaint was received within six months of the date of termination of the contract.  In the circumstances of this case I am satisfied that as the complainant was deprived of her right to paid annual leave it is correct to disapply the domestic legislation.  I find that she was entitled to paid annual leave or payment in lieu of untaken annual leave for the whole period of her fixed-term contract from 06 September 2018 to 19 July 2019, which I calculate to be 17.5 days.  I find the complaint brought under Section 19 of the Act is well founded.

The complainant also claimed for public holidays.  The entitlement to compensation for public holidays does not derive from the Directive 2003/88.  The benefit of public holidays derives from domestic legislation contained in the Organisation of Working Time Act and therefor the time limits for receipt of complaints does apply.  There was one public holiday within the relevant period for which the complainant did not receive compensation.  I find the complaint brought under Section 21 of the Act is well founded and she is entitled to compensation in respect of the public holiday in June 2019.

Having regard to all the circumstances I determine it is just and equitable to require the respondent to pay to the complainant compensation in the amount of €7,000.00 for breaches of Sections 19 and 21 of the Act.

CA-00032145 – 002

Claim brought under Section 7 of the Terms of Information (Information) Act, 1994

The complainant submits that the respondent failed to comply with the provisions of the Act as she was not provided with a written statement of her terms and conditions of employment and/or changes in the same.  Based on the written and oral submissions I am satisfied that the complainant was provided with written terms and conditions of employment when she was employed on her current ongoing contract of employment in September 2019. 

When she was classified as an independent contractor she was provided with the terms of agreement as an independent contractor.  However, she was incorrectly classified as an independent contractor rather than as an employee.  Therefore, she was not provided with a written statement of the terms and conditions applicable to an employee.  The breach of section 3 of the Act was ongoing throughout her employment from 06 September 2018 to 19 July 2019.  The complaint was received on 11 November 2019, within six months of the date of termination of the contract of employment.   I find the complaint is well founded but I am satisfied that the complainant did not suffer any detriment due to this breach of the Act.  Having regard to all the circumstances I determine it is just and equitable not to award compensation for the breach of Section 3 of the Act.

CA-00032145-001

Complaints under the Protection of Employees (Fixed-Term Work) Act 2003.

Having carefully considered the evidence of both parties, the submissions and the relevant tests as set out above I am satisfied that the complainant was incorrectly classified as an independent contractor researcher when engaged in September 2018.  She should have been classified as an employee working under a fixed-term contract of service from 06 September 2018 to 28 April 2019.  Her period of engagement was extended twice from 29 April to 24 May 2019 and again from 27 May to 19 July 2019.  I find that there was a continuous period of employment from 06 September 2018 to 19 July 2019.  The complainant submitted her complaint to the Workplace Relations Commission on 11 November 2019.  The cognisable six month period is from 12 May 2019 to 11 November 2019. 

To come within the protection of the Act a person must be employed on a fixed-term contract of service.  That is a contract “where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event” (section 2).  The complainant was issued with independent contractor terms of engagement including a start and end date and/or reference to providing service for a specific programme.  Having considered the evidence and the terms of engagement issued to the complainant I am satisfied that she was employed on a fixed-term contract of service from 06 September 2018 to 19 July 2019.  Her complaints under the Act were received on 11 November 2019, within the relevant six month time limit.

Section 9 - Contract of Indefinite Duration Claim

I am satisfied that the complainant has not established that she was employed on continuous fixed-term contracts between 02 April 2012 and 30 November 2014.  The complainant was employed in different roles on each of the two occasions and the specific purpose of each contract was completed when the contracts were terminated.  There was no commitment to future employment on either occasion.

I find the complainant has not established that she was employed on two or more continuous fixed-term contracts between August 2015 and July 2019.  Each engagement terminated when there was no further work for the complainant as a researcher when the programme season ended and there was no commitment to future engagement.  In addition, the aggregate duration of the contracts did not exceed 4 years. The aggerate duration of the contracts between 17 August 2015 and 19 July 2019 is 3 years and 15 weeks.  There was no breach of Section 9 (2) of the Act.  I find the complaint under Section 9 of the Act is not well founded and the complainant has not established an entitlement to a contract of indefinite duration.

Section 6 – Less Favourable Treatment Claim

Having considered the submissions and the evidence presented I am satisfied that the comparator is a permanent employee at researcher grade.  As the complainant was incorrectly classified as an independent contractor she was not provided with paid holidays or compensated for public holidays nor did she receive other benefits that apply to permanent researchers. 

I am satisfied the complainant should have been classified as a fixed-term employee as a researcher between 06 September 2018 and 19 July 2019 and should have had the benefit of paid annual leave and public holidays and other benefits applicable to permanent researchers employed by the respondent.  I find the complaint of less favourable treatment as compared to a permanent researcher is well founded. 

Section 8 – Failure to Provide a Written Statement of Terms Claim

Having considered the submissions I am satisfied that the complainant was provided with terms of engagement as an independent contractor that specified the objective condition determining the contract.  I have found that the complainant was not employed on continuous fixed-terms contracts and therefore there was no breach of section 8(2) of the Act.

Section 10 – Access to Training Claim

I find there was no credible evidence presented that supported this claim.  I find this claim is not well founded.

The Protection of Employees (Fixed-Term Work) Act gives effect to Council Directive 1999/70/EC, the Fixed-Term Work Directive.  As it arises from EU law, redress must be ‘effective, dissuasive and proportionate’.  Having regard to all the circumstances I consider it just and equitable to require the respondent to pay to the complainant compensation of €17,000.00 for the breach of Sections 6 of the Act.

CA-00032145-004

Complaint brought under Section 6 of the Payment of Wages Act, 1991

The complainant submitted her complaint to the Workplace Relations Commission on 11 November 2019.  The cognisable period is 12 May to 11 November 2019.  In that six month period the complaint worked for the respondent between 12 May and 19 July 2019 and again from 23 September to 11 November 2019. 

In the period from 12 May to 19 July 2019 the complainant was classified as an independent contractor researcher but, as I have already decided, she was an employee on a fixed-term contract of employment.  The complainant was always graded as a researcher and I find the wages properly payable was the rate agreed and accepted between the parties.  I find that the claim of a breach of Section 5 of the Act in the period 12 May to 19 July 2019 is not well founded.

The complainant did not receive a statement of wages in the period 12 May to 19 July 2019 because of she was not considered to be an employee but rather an independent contractor and therefore there was a breach of Section 4 of the Act.

In the period from September to November 2019 the complainant was employed as a researcher on an ‘ongoing’ part-time contract of employment.  For the reasons set out above I find the wages that are properly payable to the complainant are as stated in her contract of employment.  I am satisfied that there was no unlawful deduction from wages in the period from 23 September to 11 November 2019.  There was an administrative error on 05 November 2019 but that was corrected in the following pay period.  I find the claim under Section 5 of the Act in respect of the period 23 September to 11 November 2019 is not well founded.

CA-00032145-003

Claim brought under Section 27 of the Organisation of Working Time Act, 1997.

Having carefully considered the written and oral submissions and the evidence presented I am satisfied, on the balance of probabilities, that the claim of breaches of Sections 11, 12, 15 and 17 in the period 12 May to 19 July 2019 are not well founded.

Having carefully considered the submissions, written and oral, I am satisfied the complainant was deprived of her right to paid annual leave when she was employed on a fixed-term contract between 06 September 2018 and 19 July 2019 and that she did not receive a payment in lieu of the annual leave when her contract was terminated.  In the circumstances of this case I am satisfied that as the complainant was deprived of her right to paid annual leave it is correct to disapply the time limit in the domestic legislation.  I find that the complainant was entitled to paid annual leave or payment in lieu of untaken annual leave for the whole period of her fixed-term contract from 06 September 2018 to 19 July 2019, which I calculate to be 17.5 days.  I find the complaint brought under Section 19 of the Act is well founded.

I find the complaint brought under Section 21 of the Act is well founded and she was entitled to compensation in respect of the public holiday in June 2019.

Having regard to all the circumstances I determine it is just and equitable to require the respondent to pay to the complainant compensation in the amount of €7,000.00 for breaches of Sections 19 and 21 of the Act.

CA-00032145 – 002

Claim brought under Section 7 of the Terms of Information (Information) Act, 1994

I find the complaint is well founded but I am satisfied that the complainant did not suffer any detriment due to this breach of the Act.  Having regard to all the circumstances I determine it is just and equitable not to award compensation for the breach of Section 3 of the Act.

Independent Contractor

Employee

Fixed-term employee

Contract of Indefinite Duration

Continuous / Successive fixed-term contracts

Payment of Wages

Complainant

Respondent

Anonymised Parties

Researcher

Media Organisation

Representatives

James Doran BL instructed by Macaulay & Co Solicitors

Séamus Given Arthur Cox

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00032145-001

11/11/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00032145-002

11/11/2019

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

CA-00032145-003

11/11/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00032145-004

11/11/2019

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.

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 accordance with Section 8 of the Act concerning written statements and objective reasons.  In the circumstances it is just and equitable to draw the inference that the failure of the respondent to inform the complainant of the objective grounds was because there were none and that the respondent was merely attempting to avoid its obligations under law.  The complainant relies on the Labour Court decision in HSE Northern Area v Khan [2006] 17 E.L.R. 313 to demonstrate the significance of Section 8(2) of the Act.

It is submitted that the respondent was in breach of its obligations under Section 9 of the Act and the complainant was entitled to a contract of indefinite duration.  The complainant referred to the decision of the Labour Court in HSE Dublin North East v Ali Umar FTC/09/28 to support her submission that she was entitled to a contract of indefinite duration. 

It is submitted that the respondent breached the provisions of Section 10 of the Act, particularly in relation to access to appropriate training opportunities to enhance her skills, career development and occupational mobility.

It is submitted that the respondent has through agreements, including the specific provisions of contracts sought to exclude and limit the application of the Act, contrary to Section 12, thereby stopping the complainant accessing and accruing her statutory rights.

CA-00032145-004 – Payment of Wages Act, 1991

The complainant submits that there existed between her and the respondent an employment relationship and that she did not receive wages due to her.  Further, it is submitted that the respondent failed to provide the complainant with a Statement of Wages and Deduction from Wages in accordance with Section 4 of the Act.

It is submitted that the respondent made deductions in respect of monies due to the complainant under the Act and that the deficiency in the payments made by the respondent amount to deductions.  It is submitted that the complainant is entitled to recover monies owing to her by way of salary, increment, pay for holidays, public holidays, sick leave and time off in lieu.

The complainant submits the respondent breached the complainant’s rights under the various sections of the Act.

CA-00032145-003 – Organisation of Working Time Act, 1997

The complainant submitted that she was at all relevant times an employee of the respondent, employed by way of contracts of service, entitled to terms and conditions in accordance with collective agreements, to paid annual leave, to paid public holidays, rest periods and that during her working time she was at her place of work or at the disposal of the respondent and carrying on or performing the activities or duties of her work.

The complainant submitted that the respondent did not provide her with adequate rest periods.  Further, the respondent required her to work for periods of more than 4 hours and 30 minutes without a break of at least 15 minutes and/or to work for more than 6 hours without a break of 30 minutes.  The respondent requires the complainant to work more than an average of 48 hours in a seven day period.  The respondent did not provide the complainant with proper notice of starting and/or finishing times.

The complainant submitted that she was at all material time denied paid annual leave.  Relying on the decision of the CJEU in MaxPlanck-gesellschaft zur Forderung der Wissenschaften eV v Tetsuji Shimizu Case C-684/16, 06 November 2018, the complainant submitted that provisions in domestic law or contracts of employment providing for the automatic loss of the period of paid annual leave where the worker does not ask to exercise his/her right is precluded under Community law.  The complainant also referred to the decision in Kreuziger v Land Berlin Case C-619/19 in support of this submission.

The complainant also submitted that where national legislation does not provide for the rights to which the Directive entitles an employee then the national court must disregard such national legislation. It was submitted that the MaxPlanck and Bauer v Willermoth Case C-569/16 decisions supported this submission.  The complainant referred to the decision in Minister for Justice and Equality v Workplace Relations Commission Case C-378/17 in the context of interpretation and the disapplication of national law.

The complainant referred to the decision in Hein v Albert Holzkamm GmbH & Co. KG Case C-385/17 regarding the calculation of remuneration to be paid in respect of the minimum period of annual leave guaranteed by EU law.  In addition, the decision dealt with what account is to be taken of overtime in calculating the remuneration due in respect of the paid annual leave entitlement.

The complainant referred to the decision in King v The Sash Window Workshop Ltd and Dollar Case C-214/16 in the context of payment for annual leave not taken over several consecutive reference periods.  It was submitted that following this decision it is only when the employment relationship is terminated that there is a right to a payment in lieu of the annual leave.  Accordingly, the Statute of Limitation did not apply to prevent the payment in lieu to Mr King applying to periods of leave that ought to have been taken and/or paid many years in the past.

CA-00032145-002 – Terms of Employment (Information) Act, 1994

The complainant submitted that the respondent failed to comply with the provision of the Act.

Interpretation of Legislation

The complainant submitted that in applying domestic legislation rooted in Community law the approach should be purposive rather than a literal interpretation.  Further, in interpreting national legislation, transposing Community law, a formalistic approach should not be adopted but weight should also be placed on the consequences of a particular interpretation.   In the submission on this point the complainant relied on the decision in Minister for Justice v Workplace Relations Commission Case C-378/17.

Conclusion

The complainant is and was at all relevant times an employee of the respondent.  She was not an independent contractor.  She was not in business in her own right.  She was performing duties for the respondent as an employee. 

The complainant claims, under law and statute, that the complaints are well founded, and she seeks the following redress:

Confirmation/determination that at all relevant time she was an employee of the respondent working under contracts of service.

Confirmation/determination that at various times she was a fixed-term employee of the respondent.

Determination that the statutory claims are well founded.

Confirmation that by operation of law she attained a contract of indefinite duration.

Redress under the Employees (Fixed-Term) Work Act, 2003.

Redress under the Payment of Wages Act, 1991.

Redress under the Organisation of Working Time Act, 1997.

Redress under the Terms of Employment (Information) Act, 1994.

The complainant in her complaint form claims that:

a)       She is entitled to a contract of indefinite duration and that the respondent treated her less favourably than a comparable permanent employee.

b)      She should have been provided with a written statement of her terms and conditions of employment.

c)       There have been breaches of the Organisation of Working Time Act, 1997.

d)      There have been unlawful deductions made to her wages.

The respondent is satisfied that the complainant has not accrued a right to a contract of indefinite duration.  Furthermore, the respondent is satisfied that the rest of her complaints should be dismissed.

The respondent notes that the complainant did not make a complaint under Section 8 or Section 10 of the Protection of Employees (Fixed-Term Work) Act, 2003 in her complaint form.

The following is a summary of the complainant’s history with the respondent:

2012/2013

The complainant worked as a freelance researcher on a series of six contracts commencing on 02 April 2012 and ending on 30 June 2013.  In total she worked one year and twenty eight days.

2013/2014

The complaint was employed by the respondent as a Programme Department Assistant on a fixed purpose contract to cover maternity leave.  She commenced employment on 25 November 2013 and her contract terminated on 30 November 2014.  In total she worked for one year and five days on this fixed purpose contract.

2015/2017

The complainant worked as a freelance researcher on a series of four contracts commencing on 17 August 2015 and ending on 29 May 2017.  In total she worked one year, eight months and seventeen days.

2017/2018

The complainant worked as a freelance researcher on a series of three contracts commencing on 11 September 2017 and ending on 27 May 2018.  In total she worked for eight months and sixteen days.

2018/2019

The complainant worked as a freelance researcher on a series of three contracts commencing on 06 September 2018 and ending on 19 July 2019.  In total she worked for ten months and thirteen days.

During the following periods the complainant did not work for the respondent in any capacity:

2013 – 01 July to 24 November – Four months and twenty four days.

2014/2015 – 01 December 2014 to 16 August 2015 – Eight months and sixteen days.  The complainant worked as a video journalist with another organisation in a permanent position.

2017 – 30 May to 10 September – Three months and ten days.  The complainant worked as an Assistant Producer with an independent television production company.

2018 – 28 May to 05 September – Three months and twelve days. 

Public Competition

In July 2018 the respondent advertised several roles specific to the location where the complainant had worked.  The advertisement was for Producer Director, Assistant Producers and Researchers to fill panels for future vacancies.  The complainant applied for the roles of Producer Director and Assistant Producer.  The complainant was shortlisted for the Assistant Producer role and attended for interview.  She was not successful in obtaining a position or in being placed on a panel.  The complainant did not apply for the Researcher role.

Freelance / Contractor Review

In 2018 the respondent retained external professionals to conduct a legal review of and to report on the freelance/contractor group working with the organisation.  Following the review, the respondent introduced a new policy which established the appropriate categorisation for the future of freelance contractors providing services.  It was agreed with representative trade unions that contracts of employment would be offered, to 81 people found to have attributes akin to employment, that would reflect the pattern of engagement with the respondent over the previous two years.  As per the agreement the process would assign the persons concerned to the grade and the salary for grade appropriate to the nature of the work.

As part of the agreed process the complainant was offered an ongoing contract of part-time employment with the respondent.  The contract offered was for the position of researcher.  The complainant was given four weeks to consider the offer.  Within the four weeks she had the opportunity to discuss any aspect of the offer with a member of the HR team.  The letter of offer stated that if the contract of employment was not accepted and received back by 28 August 2019 the offer would lapse.

On 12 August 2019 the complainant and her trade union representative met with the HR Manager and the Head of Production of the relevant sections.  The closing date on the offer of employment was subsequently extended from 28 August to 03 September 2019.  The agreement with the unions included a right of appeal through an independent appeals process.  Any such appeal might concern the pay point on the grade or the hours of work offered.  The complainant advised the respondent on 02 September 2019 that she would be appealing the offer made to her.

The appeal hearing took place on 14 October 2019.  The complainant attended the hearing accompanied by her trade union representative.  The Appeal Board was composed of one independent external member and one internal member.  The Appeal Board issued its decision on 17 October 2019 concluding that the contract offered to the complainant reflected the pattern of engagement with the respondent over the previous two years and that the grade and pay were appropriate to the nature of the work undertaken.

The following day the respondent re-offered the complainant the contract of employment.  Following the recommendation of the Appeal Board the contract was backdated to 23 September 2019.  The complainant accepted that offer and is currently employed under that contract.

The respondent is satisfied that the offer made to the complainant is fair, reasonable and reflects the established salary scale and standards as agreed with the unions.

CA-00032145-001 – Protection of Employees (Fixed-Term Work) Act, 2003.

The complainant contends that she is entitled to a contract of indefinite duration.  The respondent contests that claim.  To succeed in her complainant, the complainant would have to establish that she has been at all relevant times an employee of the respondent and that she meets the statutory criteria for such a contract.

Section 9(2) of the Act provides that where “a fixed-term employee is employed by his or her employer …. on two or more continuous fixed-term contracts …. the aggregate duration of such contracts shall not exceed 4 years”.  The respondent asserts that the complainant did not have continuous service with the respondent since September 2013 as she claims.

The respondent asserts that the complainant is unable to demonstrate continuous service as required under the Act.  Further, it has been long established that a break in employment severs the continuity of service.  Section 9(2) of the Act refers to the First Schedule to the Minimum Notice and Terms of Employment Act, 1973 to 2001 to ascertaining the period of service of an employee and whether the service has been continuous.  The First Schedule states that continuous service “shall not be broken by the dismissal of the employee …. followed by the immediate re-employment of the employee”.  Between December 2014 and August 2015, the complainant worked full-time as a video journalist with another organisation.  That period of employment with another organisation defeats any argument for continuous service claimed by the complainant.  In 2017 the complainant was employed full-time with yet another employer.  Again, this defeats the complainant’s claim of continuous service.

The period between the complainant’s freelance contracts in 2018 was three and a half months.  The respondent submits that a break of this length between freelance contracts defeats a claim of continuous service.  The respondent relies on the decision of the Employment Appeals Tribunal in Myles v O’Kane [1991] E.L.R. 217 to support this submission.  In that case the Tribunal ruled that “two periods of employment with a break of four months between them, must be regarded as separate periods of employment”.  The respondent asserts that there was no agreement, understanding or commitment in May 2018 that the complainant would return in September 2018.

The respondent asserts that the complainant was not employed for the four year aggregate duration necessary to acquire a right to a contract of indefinite duration.  Even if it were to be assumed that the time prior to September 2018 was to be considered (which is not conceded) the complainant has only accumulated 39 months and 9 days as a freelance contractor.  Therefore, she does not meet the four year aggregate required under the Act.

The complainant submitted invoices under her independent contractor agreements which in most included VAT as a self-employed person.  In addition, the complainant deducted days from the weekly rate for annual leave and sick leave as she did not have an entitlement to either under her freelance contract.  At no time prior to filing this complaint did the complainant contend that she was an employee.

The respondent rejects the complainant of penalisation.  The offer made to the complainant does not constitute penalisation, it is a bona fide attempt to address her current relationship with the respondent.  She was treated the same as her counterparts.  She was offered a contract of employment in line with the Governing Principles agreed with the union representatives.

The temporal scope for the submission of complaints contained in Section 41(6) of the Workplace Relations Act applies to complaints under the Protections of Employees (Fixed-Term Work) Act.  The complainant filed her complaint on 11 November 2019 and therefore the relevant six-month period commenced on 12 May 2019.  Thus, it is only necessary to look at the complainant’s final independent contractor agreement and her current employment contract.

The respondent submits that the complainant’s claim under the Protection of Employees (Fixed-Term Work) Act should be dismissed.

CA-00032145-002 – Terms of Employment (Information) Act, 1994

The temporal scope for the submission of complaints contained in Section 41(6) of the Workplace Relations Act applies to complaints under the Terms and Conditions of Employment (Information) Act, 1994.  The relevant period to be examined is from 12 May to 11 November 2019.  Thus, it is only necessary to look at the complainant’s final independent contractor agreement and her current employment contract. 

The respondent submits at in all her engagements with the respondent as an employee, whether as a fixed-term worker or in her current role she was presented with written terms and conditions, as demonstrated in the documents appended to the submission.  Furthermore, even if the complainant was able to establish that she was an employee (which is not conceded) her terms and conditions were presented to her, as demonstrated in documents appended to the submission.

The respondent submits that is claim should be dismissed.

CA-00032145-003 – Organisation of Working Time Act, 1997

The temporal scope of Section 41(6) of the Workplace Relations Act, 2015 applies to complaints brought under the Organisation of Working Time Act, 1997.  The relevant period is from 12 May to 11 November 2019, the date the complaint was submitted.

The respondent submits that the Organisation of Working Time Act does not apply to the complainant’s independent contractor agreement.  If one were to assume that during this period the complainant was an employee, which is contested, then there is no evidence to substantiate this claim.  The invoices submitted by the complainant demonstrate that she worked regular hours during the relevant period.  In April 2019 the complainant charged for an extra 4 hours work on the evening of 16 April but, there is no other reference in her 2019 invoices to her working additional hours.

The complainant’s current contract of employment with the respondent includes specific sections on hours of work (clause 7) and holidays (clause 8).  The complainant provides no evidence to substantiate her claim that she was required to work more than 48 hours per week.

The complainant is employed as a researcher.  The researcher grade has set hours of work at 44 hours gross per week.  In line with other production grades any additional hours worked above the weekly gross hours are worked on a time off in lieu (TOIL) basis.  All time off in lieu must be approved and agreed with the Head of Production in advance of the additional hours being worked.  The complainant has not asked for TOIL during her time as an employee.  Therefore, she had given no indication that she worked more than the requisite hours during the relevant time as an employee.

The respondent submits that the complainant has not demonstrated any break of the Organisation of Working Time Act has occurred and her claim should be dismissed.

CA-00032145-004 – Payment of Wages Act, 1991

The complainant claims there have been unlawful deductions made to her wages.  The temporal scope of Section 41(6) of the Workplace Relations Act, 2015 applies to complaints brought under the Payment of Wages Act.  Therefore, the relevant period to be examined is 12 May to 11 November 2019, the date the complaint was submitted.  Thus, it is only necessary to look at the complainant’s final independent contractor agreement and her current employment contract.

On 05 November 2019 the complainant contacted HR about a problem with her pay.  Due to an unfortunate administrative error the complainant was paid as a part-time employee instead of being paid as a full-time employee.  This was a genuine error and it was rectified in the next pay period.

Since that error the complainant has been paid correctly without deductions and she has been provided with her payslips every fortnight.  The respondent submits that this complaint should therefore be dismissed.

Conclusion

The complainant asserts that she should have received a contract of indefinite duration “at an earlier stage”.  This is contested by the respondent.  The complainant has not established that she meets the statutory criteria for such a contract.

The complainant is currently an employee of the respondent.  Her contract of employment as a researcher reflects the salary scale for the grade and the hours appropriate to the nature of her work as a researcher.  This salary scale was agreed with trade union representatives,

The respondent submits that for the reasons outlined above the complainant’s claims should be rejected.

The complainant submitted four complaints on 11 November 2019.  The complaints are brought under the Protection of Employees (Fixed-Term Work) Act 2003, Terms of Employment (Information) Act 1994, Organisation of Working Time Act 1997 and Payment of Wages Act 1991.  I have considered the complaints in the order in which they were presented by the complainant.

CA-00032145-001

Complaints under the Protection of Employees (Fixed-Term Work) Act 2003.

Counsel for the complainant contends that she was at all material times an employee of the respondent.  Further it is contended that she was at times misclassified as an independent contractor.

It is contended that the complainant was treated less favourably than other permanent employees of the respondent in the programme/production grades and specifically those in the Assistant Producer grade.  In addition, it is stated that there were no objective grounds for her less favourable treatment.

The complaints include claims of entitlement to a contract of indefinite duration, failure by the respondent to fulfil its statutory obligation to provide written statements of her terms and conditions, failure to provide access to training opportunities and an attempt to exclude and limit the application of the Act

The respondent contends that the complainant has not accrued a right to a contract of indefinite duration and rejects the other complaints.  The respondent states that the complainant worked both as an employee and an independent contractor at different times between 2012 and 2019.

Legislation

The Protection of Employees (Fixed-Term Work) Act 2003 gives effect to Council Directive 1999/70/EC on fixed-term work (the Fixed-Term Work Directive).  The Fixed-Term Work Directive gives effect to the Framework Agreement on Fixed-Term Contracts concluded in March 1999.  The Framework Agreement has two purposes:

·         to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination; and

·         to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.

The non-discrimination principle is given effect by section 6 of the Act, which provides that a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.  Under section 10 the employer is required to inform a fixed-term employee of vacancies arising to ensure he or she shall have the same opportunity to secure a permanent position as other employees.

Protection against abuse arising from the use of successive fixed-term contracts of employment is provided under section 9(2) of the Act.  That section provides that where a fixed-term employee is employed on two or more continuous fixed-term contracts, then the aggregate duration of such contracts shall not exceed four years, unless there are objective grounds justifying the renewal of a contract of employment for a fixed term.

The protections of the Act, as set out above, apply to fixed-term employees.  Section 2 of the Act defines “fixed-term employee” as:

“fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event but does not include—

(a) employees in initial vocational training relationships or apprenticeship schemes,

or

(b) employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme;

As the complainant contends that she was at all material times an employee and the respondent contends that she was at one time an employee and at all other times an independent contractor, I must first decide if the complainant was an employee or an independent contractor. 

Employee or Independent Contractor?

It is agreed that the complainant was employed as a Programme Department Assistant from 25 November 2013 to 30 November 2014.  That employment contract was for the specific purpose of covering a period of maternity leave of another employee.  That was the only occasion when the respondent issued a fixed-term contract to the complainant.  At all other times the complainant was issued with documents setting out terms of engagement as an independent contractor.

Evidence

Complainant

The complainant in her oral testimony described her work history with the respondent.  She stated that the work she performed was no different to that of similar PAYE employees of the respondent.  She stated she sought to be employed as an employee rather than as an independent contractor but was told that this would not be permitted by HR. 

The complainant stated that as she had been designated as an independent contractor rather than an employee she did not receive payment for holidays.  Describing her work arrangements, she stated that she commenced work most mornings between 08.00 and 08.30 and often worked 12 to 14 hours days when filming.  Time off in lieu was often promised but not provided due to demands of the schedule.  She claimed she had worked 166 days of TOIL.  Her work hours were directed by her manager.

The complainant stated that although she was described as a researcher she frequently did work at the level of Assistant Producer.  Specifically, she did work as a Digital Content Creator, producing a lot of items and shooting and editing reports.  She stated she had been promised an Assistant Producer contract by her manager when she agreed to do the Digital Content work.  This work was subsequently removed, and she felt she had been demoted. In her view the removal of this work lessened her chance of obtaining a permanent Assistant Producer post.  In 2018 she applied for an Assistant Producer post, but she was unsuccessful in her application.

In comparing her work arrangements to those of employees the complainant stated that her experience was not recognised in setting her remuneration for her current contract, whereas other employees received annual increments.  She had to negotiate with her manager on each occasion but, he set the rate of pay that she received for the independent contract work.  She stated that when she was offered an employee contract, in 2019, her salary did not reflect her experience or working hours and was she believed a reduction in pay.  She contended that she had been placed at a point on the researcher scale that was below that of less experienced employees.  As the complainant was not satisfied with the terms of the contract offered to her in July 2019 she submitted an appeal to the internal consultant’s appeal process.  The appeal was not successful. 

In cross examination the complainant confirmed that the dates of engagement with the respondent, provided in their submission were correct.  She confirmed that in 2018 she had applied for two Assistant Produced roles but was unsuccessful in her application.  She confirmed that she had been described as a researcher in her terms of engagement with the respondent.  However, she stated it was common knowledge that she did work other than that of researcher.

Head of HR

The Head of HR (Content Division) in her testimony described how the respondent had, in early 2018, engaged independent external consultants to conduct a legal review of the freelance/independent contractor population within the organisation.  Following that review the respondent introduced a new policy which established the appropriate categorisation for the future of freelance contractors providing services to the respondent. 

The consultants determined that a 81 people working for the respondent had ‘attributes akin to employment’.  The consultants provided guidance as to how their recommendations should be implemented in a ‘Governing Principles’ document.

The Head of HR described the interaction with the trade unions.  Negotiations took place which were at times difficult.  One union stepped aside during the negotiations.  Eventually, through negotiation, the implementation of the recommendations proceeded.  Contracts of employment were offered to 81 people who had previously been categorised as freelance.  These contracts reflected the pattern of engagement over the previous two years.  Based on that two year period they would be assigned the grade and salary point appropriate to the nature of the work to be performed.  The complainant was one of the people described in the consultant’s report as having “attributes akin to employment”.  She was offered an ongoing contract of part-time employment as a researcher in July 2019.

The Head of HR described in detail the process agreed with the trade unions, the review of invoices conducted, the governing principles of the process, and the appeals process. 

The complainant disputed that the contract offered to her on 31 July 2019 accurately reflected the work she had done, her experience and salary level.  On 12 August 2019 the complainant and her trade union representative met with the Head of HR and the Head of Production.  That meeting did not resolve the issue for the complainant and she lodged on appeal on 02 September 2019.  The appeal board concluded that the contract offered to the complainant reflected the pattern of engagement over the previous two years and that the grade and pay were appropriate to the nature of the work undertaken.  Following the appeal, the complainant accepted, with reservations, the ongoing part-time employment contract effective from 23 September 2019.

In cross examination the Head of HR stated the decision to recruit was a local management decision that then went through an approval process.  She confirmed that the complainant was not required to supply equipment, did not take a financial risk or make a profit from her work and was assigned her hours of work.  She confirmed that the complainant was part of the team working on the specific programme.  In response to a question about the difference between an employee and an independent contractor she stated the difference was the terms on which they were engaged. 

The Head of HR stated that business efficiency required the use of employment contracts, fixed-term contract and independent contractors.  Some issues had arisen with the use of independent contractors and the respondent had arranged the independent review.  Out of 400 case reviews some 81 were found to have ‘attributes akin to employment’.  The 81 were offered employment contracts and 79 accepted.

Head of Production

The Head of Production described his role with the respondent organisation.  He is responsible for overseeing television production in his area and creating opportunities for production.  The main television programme in his area usually runs for eight months of the year.  There are twenty core staff employed and there may be between ten and twenty additional staff required during the year. 

The main television programme depends on commercial segments to generate income which goes directly to the production of the show.  As the production of the main programme requires commercial segments the start of the season is usually only confirmed about one month in advance.  For example, a September start may only be confirmed in August.  The main programme runs on an annual renewal depending on available funding.  The production team includes a producer, an assistant producer and two researchers.

He described the role of the researcher as including a wide range of tasks such as finding and writing topics and distilling information.  The producer and assistant producer were responsible for writing the script for the programme.  Researchers work five days per week, two days on air and three days off air.  He stated that on air days are very busy starting at 09.00am reviewing news and an editorial meeting.  Usually taking a break at 12.30 and rehearsing between 13.30 and 15.00.  The programme went on air from 15.30 to 17.40. Friday’s show was pre-recorded, so the editorial meeting usually started at 09.30.  Most Fridays the team finished early and they could take time if they had worked extra hours earlier in the week.   He stated they did not use a clocking system and people were responsible for all their tasks to be completed on the day.

He stated that before 2019 independent contractors were engaged in production and specific projects.  In 2017 he had lobbied the respondent to set up a pool of people from which staff could be recruited and vetted properly.  As a result, in 2018 various posts were advertised.  The complainant did not apply for the post of researcher when it was advertised. 

In response to a question about the description of the complainant’s freelance post as that of researcher he stated that she was doing the work of a researcher.  He stated that he had 35 years’ experience in television and he did not recognise that the complainant was doing anything more than research work.  He stated that Assistant Producers work at a very high level requiring a broad range of skills.  Freelance researchers were helped to gain experience for possible future advancement, but they did not work at Assistant Producer level.  He confirmed that he had asked the complainant to do work on digital content as she wanted to be a reporter in news.  However, it did not work out as it was too much.  He rejected the suggestion that the complainant was given a role as Digital Content Creator.  He stated that such a role did not exist at that time.  He confirmed there is now such a role in Dublin in the marketing division, but it is paid less.  He stated that Assistant Producers are not content creators. 

The Head of Production stated that time off in lieu was available to employees when they worked additional hours that were approved in advance by their manager.  Similarly, if a freelance contractor got approval in advance to work additional hours then they would include the charge on their invoice.  If a freelance contractor worked on a public holiday, then they would charge for those hours on their invoice.

In cross examination responding to questions about the difference between freelance contractors and PAYE employees the Head of Production confirmed that freelance contractors had their hours of work set by their manager, that the equipment they used was supplied by the respondent and that they did not share in profits.  He stated that the rate paid to freelance contractors was decided between him as Head of Production, HR and Finance.  The rate depended on the budget for the programme and he tried to match people to the fees on offer.

Responding to questions about time off in lieu the Head of Production stated that the complainant’s claim was not realistic.  Additional hours had to be approved in advance by the manager and freelance contractors would then include the additional hours on their invoices.  Daily there was flexibility if someone worked a bit longer they could take time the next day or maybe on Friday afternoon.  He stated that they tried to be flexible and decent about day to day working hours.

When questioned about the 2018 recruitment and the awarding of an independent contract to the complainant the Head of Production stated that the external consultants review was taking place at the same time as they were recruiting for researchers, assistant producers and producer roles.  He had lobbied HR to get permission to employ outside the new pool to create opportunities for all and as a mark of goodwill.  The complainant had the opportunity to apply for a post as a researcher and she choose not to apply.  She did apply for an assistant producer post but was not successful.  Independent contracts were project based and employment contracts were only awarded to people who were successful in the open competition.

Responding to questions about the role of Digital Content Creator the Head of Production stated that the role does not apply in the Content Division.  There is such a role in the sales and marketing area.  He confirmed that in the News Division there is now a digital content role, but he stated that was a very different operation.  News is a separate division with different requirements and way of operating to the Content Division.  When asked about the complainant getting on screen credit as a Digital Content Creator he stated that was not approved and was almost a disciplinary matter.

Responding to questions about the 2018 recruitment he stated the researcher posts were advertised, interviews were held, and 8 successful applicants were in a pool from which they were offered employment contracts.  The complainant did not apply for a researcher post.

Complainant’s Status

The courts have developed and applied several tests over time to ascertain the correct status of a person as either an employee or an independent contractor.  However, in The Minister for Agriculture and Food v Barry & Ors [2009] IR 215 Edwards J was clear that all the various tests are potential aids to identifying the nature of the working relationship, but no single test is definitive.  I considered the following tests before deciding if the complainant was an employee or an independent contractor.

Mutuality of Obligation

If an employment contract is to exist there must be mutuality of obligation between the employer and the employee.  That is, there is an obligation on the employer to give the employee work and an obligation on the employee to carry out the work for the employer.  The requirement of mutuality of obligation was described in The Minister for Agriculture and Food v Barry [2009] IR 215 as follows:

“The requirement of mutuality of obligation is the requirement that there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer.  If such mutuality is not present, then either there is no contract at all or whatever contract there is must be a contract for services or something else, but not a contract of service.”

Apart from the one fixed-term contract (25 November 2013 to 30 November 2014) the complainant was engaged by way of an Independent Contractor Agreement.  Each such agreement stated “(The respondent) hereby engages the Contractor to provide the Services to (respondent) and the Contractor hereby agrees to provide the Services upon the terms and conditions set out in this Agreement”.  Each agreement, at paragraph 3.1, included a commencement and termination date and in Schedule 1 stated as Services to be provided by the Contractor “To provide the services of Researcher to the (name of programme) as required for and on behalf of (respondent), as may be required for the period as set out in Clause 3.1 of this Agreement”. 

Based on the evidence at the hearings it was clear that during the periods specified the complainant was required to work full time for the respondent on the named programme for which she was paid a fee by the respondent.  Although a strict interpretation of the phrase “as may be required” could be that the respondent was not obliged to provide work during the whole specified period, the reality was, based on the evidence, that the respondent expected the complainant to work full time on the named programme during the specified period and paid her fees as provided for in the agreement.

Control

This test came from the concept of master and servant relationships.  The master having the right to direct the servant as to what work was to be done and how it was to be done.  While at one time this test was the principal test used to determine the status of employee or independent contractor of a person it is now regarded as only one of several relevant tests to be used.  The Supreme Court, Keane J, in Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare [1997] IESC 9 stated:

“It is, accordingly, clear that, while each case must be determined in the light of its particular facts and circumstances, in general a person will be regarded as providing his or her services under a contract of service and not as an independent contractor where he or she is performing those services for another person and not for himself or herself. The degree of control exercised over how the work is to be performed, although a factor to be taken into account, is not decisive. The inference that the person is engaged in business on his or her own account can be more readily drawn where he or she provides the necessary premises or equipment or some other form of investment, where he or she employs others to assist in the business and where the profit which he or she derives from the business is dependent on the efficiency with which it is conducted by him or her.”

The complainant gave evidence about her normal work arrangements.  She worked at the respondent’s premises along with employees of the respondent.  Equipment necessary for her work was provided by the respondent.

Based on the evidence at the hearings, I am satisfied that the complainant provided all the services personally for the respondent, she worked in compliance with the directions of her manager, she did not employ others to do her work for her, she did not provide her own equipment or premises and she was not engaged in business on her own account.

Integration

This test emerged from situations where it was thought the level of control was of less significance due to the skill required for an employee’s work.  The test was applied by Carroll J in Re Sunday Tribune Ltd [1984] IR 505 where she held that the control test was not the sole test to be applied in deciding the status of the relationship. Carroll J held:

“The Court must look at the realities of the situation in order to determine whether the relationship of employer and employee in fact exists, regardless of how the parties describe themselves (see Ferguson v. Dawson and partners CA 1976 1 W.L.R. 1213).”

Carroll J in her decision referred to Beloff v Pressdram Ltd [1973] 1 ALL ER 241, quoting from Ungoed-Thomas J:

“"It thus appears, and rightly in my respectful view, that the greater the skill required for an employee's work, the less significant is control in determining whether the employee is under a contract of service. Control is just one of many factors whose influence varies according to circumstances. In such highly skilled work as that of the plaintiff it seems of no substantial significance. The test which emerges from the authorities seems to me, as Denning L.J. (in Stevenson Jordan & Harrison Ltd. v Macdonald [1952] 1 T.L.R. 101) said, whether on the one hand the employee is employed as part of the business and his work is an integral part of the business, or whether his work is not integrated into the business but is only accessory to it or, as Cook J. expressed it, the work is done by him in business on his own account."

Carroll J held that one of the claimant’s satisfied the integration test as described above and was employed under a contract of service although she had been described as an independent contractor from whom income tax was not deducted under the P.A.Y.E system.

I am satisfied, based on the evidence, that the complainant was not in business on her own account, that she worked under the direction of her manager each week on the production of the programme for the period stated in the documents provided to her by the respondent.  Her work involved research that was required to produce the programme each week.  In my opinion the complainant’s work was an integral part of the business of the respondent.

Written Agreement

Apart from one fixed-term contract (25 November 2013 to 30 November 2014) when employed as a Programme Department Assistant the complainant at all other times was described as a freelance researcher and issued with an independent contractor agreement by the respondent.  I note that the complainant when working as a freelance researcher was not on the P.A.Y.E. system and made her own tax returns.  The complainant was aware of the type of agreement she accepted even though she told the respondent that she wanted a contract of employment.

In the Supreme Court decision in Castleisland Cattle Breeding Society Limited v. Minister for Social and Family Affairs, (Unreported, Supreme Court, 15th July 2004) Geoghegan J. stated at p. 15: 

“The wording of a written contract still remains of great importance. It can, however, emerge in evidence that in practice the working arrangements between the parties are consistent only with a different kind of contract or at least are inconsistent with the expressed categorisation of the contract.”

The importance of a written agreement was further considered in ESB v Minister for Social Community and Family Affairs [2006] IEHC 59 by Gilligan J who stated the following in his conclusions:

“I take the view that the issue which the Appeals Officer had to decide in this case is to be approached on the basis that the written agreement existing between the parties is of considerable importance and has to be given due consideration but is not conclusive in its own right and therefore, following Keane J. in Henry Denny & Sons (Ireland) Limited t/a Kerry Foods v. Minister for Social Welfare [1998] 1 I.R. 34, the particular facts and circumstances of the case have to be considered.

In general, a person will be regarded as providing his or her services under a contract of service and not as an independent contractor where the person is performing the services for another person and not for himself. The degree of control exercised over how the work is to be performed is a factor to be taken into account but is not decisive. Factors to be considered include who provides the necessary premises and equipment or some other form of investment, whether others are employed to assist in the business, and whether the profit derived is dependent on the efficiency of the person concerned.”

I am satisfied, on the evidence adduced, that the complainant worked at the respondent’s premises or on location, with equipment provided by the respondent and did not invest in the business.  She was paid the amount stated in the agreement for work as a researcher under the direction of her manager.

Finding

Having carefully considered the evidence of both parties, the submissions and the relevant tests as set out above I am satisfied that the complainant was incorrectly classified as an independent contractor researcher when engaged in September 2018.  She should have been classified as an employee working under a fixed-term contract of service from 06 September 2018 to 28 April 2019.  Her period of engagement was extended twice from 29 April to 24 May 2019 and again from 27 May to 19 July 2019.  I find that there was a continuous period of employment from 06 September 2018 to 19 July 2019.  The complainant submitted her complaint to the Workplace Relations Commission on 11 November 2019.  The cognisable period is from 12 May 2019 to 11 November 2019. 

To come within the protection of the Act a person must be employed on a fixed-term contract of service.  That is a contract “where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event” (section 2).  The complainant was issued with independent contractor terms of engagement including a start and end date and/or reference to providing service for a specific programme.  Having considered the evidence and the terms of engagement issued to the complainant I am satisfied that she was employed on a fixed-term contract of service from 06 September 2018 to 19 July 2019.  Her complaints under the Act were received on 11 November 2019, within the relevant six month time limit.

Section 9 - Contract of Indefinite Duration Claim

The complainant submitted that she was entitled to a contract of indefinite duration.  Responding to a question from me the claim was described as going back four years from the date the complaint was submitted to the Workplace Relations Commission, that is 11 November 2019. 

As stated earlier in addition to providing for equal treatment for fixed-term workers the Framework Agreement and the Act aims to prevent abuse using successive fixed-term contracts.  The complainant claims that she was entitled to a contract of indefinite duration by operation of law.  Section 9 of the Act provides as follows:

9.— (1) Subject to subsection (4), where on or after the passing of this Act a fixed term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.

(2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.

(3) Where any term of a fixed-term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.

(4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.

(5) The First Schedule to the Minimum Notice and Terms of Employment Acts 1973 to 2001 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous.

In my opinion a claim of entitlement to a contract of indefinite duration by operation of law must be assessed on the individual contract dates and whether the requirements of Section 9 have been established.  I have found that the complainant was employed on a fixed-term contract from 06 September 2018 to 19 July 2019.  By 11 November 2019 the complainant was no longer employed on a fixed-term contract.  The complainant had been offered and accepted, with reservations, an “ongoing” part-time contract of employment in October 2019 (backdated to 23 September 2019).  The question now to be decided is whether the complainant was employed on two or more continuous fixed-term contracts with an aggerate duration of four years or more at the time she was last employed on a fixed-term contract. 

Section 9 (1) and (2) of the Act refers to ‘continuous’ employment and fixed-term contracts respectively.  The usual meaning of continuous is without interruption.  It cannot be said that the complainant’s engagement with the respondent was without interruption.  However, Clause 5 of the Framework Agreement on Fixed-Term Work, as annexed to Directive 1999/70/EC, refers to ‘successive’ fixed-term contracts.  The usual meaning of successive is one following the other. 

The difference between the wording of Section 9 of the Act and Clause 5 of the Framework Agreement was considered by the Labour Court in Department of Foreign Affairs v A Group of Workers [2007] 18 E.L.R. 332.  The Court noted:

“there appears, at first sight, to be a conflict between S 9 of the Act and Clause 5 of the Framework Agreement.  This arises from the fact that Clause 5 of the Framework Agreement applies to fixed-term contracts which are successive thus giving it a considerably wider scope than if its application was confined to employment relationships which were continuous.  It seems to the Court that there is a significant qualitive difference between the concept of a continuous employment relationship and one which is successive.  The former connotes an employment relationship without interruption whereas the latter indicates a series of relationships which follow each other but can be separated in time.

It will be noted that Clause 5.2(a) of the Framework Agreement permits Member States to define, inter alia, the conditions under which fixed-term contracts will be regarded as successive.  This provision, however, could hardly authorise a Member State to define the concept of successive employment as meaning something which is qualitatively different and narrower in scope than that term would normally bear.”

In the above case the Labour Court relied on the decision of the European Court of Justice in Adeneler Case C-212/04, [2006] ECR l-6057 where the Court ruled that Clause 5 of the Framework Agreement was to be interpreted as ‘precluding a national rule under which only fixed-term employment contracts that are not separated from one another by a period of time longer than 20 working days are to be regarded as successive’.

In the instant case the complainant worked for the respondent on several occasions between 2012 and 2019 (before her current ongoing part-time contract).  Each engagement was separated from the next by different periods of time.  The complaint form contains different dates as to when the complainant first worked for the respondent, April 2012 and September 2013, are included in the form.  However, from the submissions it appears the complainant’s engagement covered the following periods:

·         02 April 2012 to 30 June 2013 – classified as an independent contractor researcher

·         25 November 2013 to 30 November 2014 – fixed-term employee covering maternity leave

·         17 August 2015 to 30 April 2017 – classified as an independent contractor researcher

·         11 September 2017 to 27 May 2018 – classified as an independent contractor researcher

·         06 September 2018 to 19 July 2019 – classified as an independent contractor researcher

It is clear from the above that this case concerns not an employment relationship without interruption but rather a series of relationships which follow each other but separated in time.

At no stage was the separation between the complainant’s engagements with the respondent less than three months.  The complainant was employed on a fixed-term contract to cover maternity leave for one year from November 2013 to 2014.  The complainant confirmed that following that fixed-term employment she was employed by another organisation.  Her next engagement as a researcher was eight and a half months later.  In 2017 she was again employed elsewhere.  The respondent stated that there was no commitment to or guarantee of future employment at the end of each period of engagement as an independent contractor as the programme she had on since 2015 ran on an annual renewal basis depending on available funding.

The Labour Court in Department of Foreign Affairs v A Group of Workers upheld the finding of the Rights Commissioner that the complainants were employed on continuous contracts for the purpose of Section 9 of the Act.  The Court considered the period of service of the employees and whether that service had been continuous or not (S 9(5)) in the context of the First Schedule of the Minimum Notice and Terms of Employment Act, 1973 which provides at point 3:

A lay-off shall not amount to the termination by an employer of his employee’s service.

The periods between contracts were held to be periods of lay-off.  The respondent had accepted that on each occasion on which the complainant’s contracts terminated it was reasonable in the circumstances for it to believe that the cessation of the employment would not be permanent.  It was also the belief of the complainants that they would be re-employed.  The complainants remained on a panel for temporary work and were recalled based on their seniority as work became available.

In Beary v The Revenue Commissioners FTD112 the Labour Court again considered a claim of entitlement to a contract of indefinite duration in the context of a series of fixed-term contracts.  The Court in considering the definition of ‘continuity of service’ and ‘computable service’ as set out in the First Schedule of the Minimum Notice and Terms of Employment Act, 1973, observed:

“The fundamental effect of this provision is that all periods of employment are to be regarded as continuous unless broken by dismissal or resignation.  Hence successive periods of employment, which are not continuous in the literal sense, because they are broken by, for example, lay-off or authorised absence, are deemed to be continuous.  It is accordingly clear that the word ‘continuous’ as used in the Act, has a special meaning which is different to its ordinary or dictionary meaning.  As so defined the word can, in certain circumstances, have a meaning more akin to the ordinary meaning of the word successive.”

The Labour Court went on to consider if the complainant was employed on a series of separate contracts, each of which was terminated by dismissal, or whether the period between contracts could be regarded as lay-offs.  The term ‘lay-off’ for the purposes of the Minimum Notice and Terms of Employment Act, 1973 has the same definition as in the Redundancy Payments Act, 1967, section 11 (1) as follows:

Where after the commencement of this Act an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and –

(a)    It is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b)    the employer gives notice to that effect to the employee prior to the cessation,

that cessation of employment shall be regarded for the purposed of this Act as lay-off

The Labour Court in considering the above definitions stated:

“…the expiry of a fixed-term contract without its renewal is a dismissal.  Hence, on the literal application of the First Schedule of the Act of 1973 there could be no continuity between one fixed-term contract and the next unless it was immediately renewed.  In the Court’s view such a result would be at variance with the object pursued by the Directive and could not be adopted.

The alternative and better approach is to construe the First Schedule of the 1973-2005 Act so as to produce the result envisaged by the Directive.  In that regards it would seem that the concept of successive employment arises where a person is engaged to do the same job intermittently.  Hence it could reasonably be said that where a person’s employment is terminated because there is no longer work available for him or her to do, and it is envisaged at the time of the terminations that his or her service will be required again in the future, and they are in fact re-engaged, the employment could be regarded as continuous.”

The Labour Court held, on the specific facts of the case, including the dates of the fixed-term contracts and his inclusion on a panel from which he was re-employed, that the complainant had been employed on a succession of fixed-term contracts and that all the breaks between the termination of one contract and the commencement of another, should properly be regarded as period of lay-off.  However, the Court held that there were objective grounds which justified the respondent’s failure to appoint the complainant to a permanent full-time clerical post.

Application to the instant case

S 9 (2) of the Act requires two things, first there must be continuous fixed-term contracts and second the aggerate duration of such contracts shall not exceed four years.   Except for the fixed-term contract from 25 November 2013 to 30 November 2014 all the complainant’s other engagements with the respondent were classified as independent contractor engagements.  The complainant’s engagement covered the following periods:

·         02 April 2012 to 30 June 2013 – classified as an independent contractor researcher

·         25 November 2013 to 30 November 2014 – fixed-term employee covering maternity leave

·         17 August 2015 to 30 April 2017 – classified as an independent contractor researcher

·         11 September 2017 to 27 May 2018 – classified as an independent contractor researcher

·         06 September 2018 to 19 July 2019 – classified as an independent contractor researcher

The complainant’s first engagement as an independent contractor researcher on a specific programme commenced on 02 April 2012.  That engagement ended on 30 June 2013 and the complainant was not engaged again to work on that programme. That engagement ended as there was no longer work available on that programme.  There was no commitment when that work ended that the complainant would be re-engaged.

The complainant was next employed on a fixed-term contract as a Programme Department Assistant to cover a period of maternity leave, from 25 November 2013 to 30 November 2014.  The complainant’s employment came to an end when the employee for whom she was providing cover returned to work and the respondent no longer had work for her to do in that capacity.  There was no commitment to or expectation of further employment in this role when the contract was terminated.

I am satisfied that the complainant has not established that there was continuous service between 02 April 2012 and 30 November 2014.  The complainant was employed in different roles on each occasion and the specific purpose of each contract was completed when the contracts were terminated. 

The facts of this case are quite different to the facts of Department of Foreign Affairs v A Group of Workers and Beary v The Revenue Commissioners.  Here the complainant had no commitment from the respondent to anything other than the specific terms of the engagement / contract, she was not on a panel for future vacancies.

The complainant was next employed elsewhere and had no further engagement with the respondent for eight and a half months. 

In August 2015 the complainant was engaged by the respondent as an independent contractor researcher.  The complainant was employed from 17 August 2015 to 30 April 2017 as a researcher on two different programmes.  She was also engaged for four days in May 2017 for another programme.  I am satisfied that this engagement terminated when the specific programme ended its season and there was no commitment to future engagement as a researcher.

The complainant next worked for another company for several months.

The complainant was engaged as an independent contractor researcher again on 11 September 2017 to work on a new season of one of the programmes she had worked on in 2015/16 and 2016/17.  This engagement continued until 27 May 2018.

The complainant was next engaged as an independent contractor researcher from 06 September 2018 until 19 July 2019 to work on another season of one of the programmes she had worked on in 2015/16, 2016/17 and 2017/28. 

The complainant was engaged as an independent contractor researcher for the same programme in the seasons 2015/16, 2016/17, 2017/18 and 2018/19 for different periods of time.  The breaks that occurred between August 2015 and July 2019 were in all cases more than three months in duration, but the length of those breaks is not conclusive that employment was not continuous if, following the reasoning of the Labour Court in Department of Foreign Affairs v A Group of Workers and Beary v The Revenue Commissioners, those breaks could be considered as periods of lay-off.  However, I am satisfied that at the end of each period the engagement terminated as there was no further work for the complainant on the specific programme she had been working on and there was no commitment to future engagement.  This is particularly so in 2018 when the respondent had created a pool or panel of researchers for future work and the complainant had not applied for that researcher post. 

I find the complainant has not established that she was employed on two or more continuous fixed-term contracts between August 2015 and July 2019.  Each engagement terminated as there was no further work for the complainant as a researcher when the programme season ended and there was no commitment to future engagement. In addition, the aggregate duration of the contracts did not exceed 4 years. The aggerate duration of the contracts between 17 August 2015 and 19 July 2019 is 3 years and 15 weeks.  There was no breach of Section 9 (2) of the Act.  I find the complaint under Section 9 of the Act is not well founded and the complainant has not established an entitlement to a contract of indefinite duration.

Section 6 – Less Favourable Treatment Claim

The complainant claims that she was treated less favourably in respect of her conditions of employment than a comparable permanent employee.  Specifically, she claims she was treated less favourably in respect of pay, hours of work, time off in lieu, holidays, public holidays, privilege days, sick leave, carers leave, maternity leave, parental leave, force majeure leave, pensions, permanent health insurance, death in service benefits, incremental progression, career progression, access to facilities for employees, rights under the Organisation of Working Time Act, redundancy, medical insurance and occupational injuries.  Further, she claims there was no objective grounds for the less favourable treatment.  The respondent rejected the claims of less favourable treatment.

Section 6 of the Act provides as follows:

6.— (1) Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.

(2) If treating a fixed-term employee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

(3) A period of service qualification relating to a particular condition of employment shall be the same for a fixed-term employee as for a comparable permanent employee except where a different length of service qualification is justified on objective grounds.

(4) For the avoidance of doubt, the reference in this section to a comparable permanent employee is a reference to such an employee either of the opposite sex to the fixed-term employee concerned or of the same sex as him or her.

(5) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a fixed-term employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable permanent employee.

(6) The extent to which any condition of employment referred to in subsection (7) is provided to a fixed-term employee for the purpose of complying with subsection (1) shall be related to the proportion which the normal hours of work of that employee bears to the normal hours of work of the comparable permanent employee concerned.

(7) The condition of employment mentioned in subsection (6) is a condition of employment the amount of benefit of which (in case the condition is of a monetary nature) or the scope of the benefit of which (in any other case) is dependent on the number of hours worked by an employee.

(8) For the avoidance of doubt, neither this section nor any other provision of this Act affects the operation of Part III of the Organisation of Working Time Act 1997.

The complainant submitted that the comparable permanent employees were other programme/production grades within (the respondent), specifically others in the Assistant Producer grade.  Comparable permanent employee is defined in Section 5 of the Act as follows:

5.— (1) For the purposes of this Part, an employee is a comparable permanent employee in relation to a fixed-term employee if—

(a) the permanent employee and the relevant fixed-term employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,

(b) in case paragraph (a) does not apply (including a case where the relevant fixed-term employee is the sole employee of the employer), the permanent employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant fixed-term employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable permanent employee in relation to the relevant fixed-term employee, or

(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant fixed-term employee and one of the conditions referred to in subsection (2) is satisfied in respect of those employees, and references in this Part to a comparable permanent employee in relation to a fixed-term employee shall be read accordingly.

(2) The following are the conditions mentioned in subsection (1)—

(a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,

(b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and

(c) the work performed by the relevant fixed-term employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

As set out at S 2(a) above to establish a valid comparison ‘both of the employees perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work’.  The evidence of the respondent was that the complainant was never engaged as an Assistant Producer.  The complainant acknowledged that in all the terms of engagement documents she received she was described as a researcher.  The complainant submitted that she did work at a higher level and that at one point was accredited as being a Digital Content Creator.  I can accept that the complainant did from time to time perform some duties that were outside the job description of a researcher but that is not enough to establish that she was working at the Assistant Producer grade.  Having considered the submissions and the evidence presented I am satisfied that the comparator is a permanent employee at researcher grade. 

The respondent provided copies of the invoices submitted by the complainant as an independent contractor.  The complainant submitted an invoice each fortnight and I note that she deducted days when she was unable to work due to illness and when she took leave and included claims for extra days worked or overtime worked.  The following are examples:

Invoice 03/12/2018 – Rate €850 per week – minus 2 holiday days and 1 sick day

Invoice 14/12/2018 – Rate €850 per week – minus two sick days

The complainant claims she has accrued 166 days of time off in lieu for time worked during the whole period of her engagement with the respondent.  She claims unlike a permanent employee she was not provided with time off in lieu that she had accumulated.  The respondent rejected the claim and stated that for all employees, permanent or fixed-term, and contractors, overtime leading to time off in lieu must be approved in advance by the relevant manager and employees would not be permitted to build up significant amounts of time.  There is a direct conflict between the parties on this point.  However, I note from the invoices submitted that on several occasions the complainant did claim for overtime hours worked or extra days and that those invoices were approved and paid.  The following are examples:

Invoice 18/04/2019 – plus extra 4 hours worked on Tuesday evening 16/04/2019

Invoice 22/05/2018 – plus half day Saturday 19/05/2018

Invoice 08/05/2018 – plus 4 hours Friday 04/05/2018 plus Sat (1 day) & Sun (1.5 days)

Invoice 12/03/2018 – plus one extra day Saturday 03/03/2018

Invoice 25/09/2017 – plus one extra day

As the complainant could and did claim for extra hours or days worked I prefer the evidence of the respondent that time off in lieu for all employees and contractors had to be approved in advance and was managed in a way that did not allow a large accumulation of time.  I do not accept that the complainant accrued 166 days of time off in lieu. 

I have already found that the complainant was wrongly classified as an independent contractor and should have been classified as a fixed-term employee.  As she was classified as an independent contractor she was not provided with paid holidays or compensated for public holidays nor did she receive other benefits that apply to permanent researchers such as paid sick leave, permanent health insurance or medical insurance.  I am satisfied the complainant has established that she was treated less favourably than a comparable permanent researcher.  Less favourable treatment may be permitted Section 6 (2):

(2) If treating a fixed-term employee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

The respondent acknowledged that the terms of engagement of independent contractors and fixed-term employees were different, but it did not provide credible grounds for the less favourable treatment of the complainant as compared to a permanent researcher.  It seems to me that the respondent permitted a situation to develop where there was no real examination, at a central management level, of the circumstances in which people were offered terms of engagement as independent contractors by sectional management, when they should have been offered an employment contract.  I am satisfied the complainant should have been classified as a fixed-term employee as a researcher between 06 September 2018 and 19 July 2019 and should have had the benefit of paid annual leave and public holidays and other benefits applicable to permanent researchers employed by the respondent.  I find the complaint of less favourable treatment as compared to a permanent researcher is well founded. 

Sections 8 – Written Statement Claim

The complainant claims the respondent has failed in its statutory duty to provide a written statement as required by section 8(2) of the objective grounds justifying the renewal of a fixed-term contract.  The complainant submits that the purpose of section 8 is not just to ensure that a fixed-term employee is informed of the reason why his or her contract is being renewed.  Reading the section in full it is intended to ensure that the employer definitively commits itself, at the point at which the contract is being renewed, to the grounds upon which it will rely if subsequently pleading a defence under section 9(4).

The respondent submits that the when the complainant was employed on a fixed-term contract she was provided with a statement in compliance with section 8(1) and when engaged as an independent contractor the Act did not apply to her. 

Having considered the submissions I am satisfied that the complainant was provided with terms of engagement as an independent contractor that specified the objective condition determining the contract.  I have found that the complainant was not employed on continuous fixed-terms contracts and therefore there was no breach of section 8(2) of the Act.

Section 10 – Access to Training Claim

The complainant claims she was not facilitated with access to appropriate training opportunities to enhance her skills, career development and occupational mobility.  There was no credible evidence presented that supported this claim.  I find this claim is not well founded.

Section 12 – Voidance of Certain Provisions Claim

The complainant claims that by issuing terms of engagement as an independent contractor rather than issuing a fixed-term contract of employment the respondent sought to exclude and limit the application of the Act.  I am satisfied on the balance of probabilities that it was not official policy to exclude or limit the application of the Act but, I am satisfied that the respondent allowed a practice to develop, without proper investigation, where terms of engagement as independent contractors were issued instead of fixed-term contracts of employment.  This practice put the complainant at a disadvantage as a researcher as compared to permanent researchers employed by the respondent.

The Protection of Employees (Fixed-Term Work) Act gives effect to Council Directive 1999/70/EC, the Fixed-Term Work Directive.  As it arises from EU law, redress must be ‘effective, dissuasive and proportionate’.  Having regard to all the circumstances I consider it just and equitable to require the respondent to pay to the complainant compensation of €15,000.00 for the breach of Sections 6 and 8 of the Act.

CA-00032145-004

Complaint brought under Section 6 of the Payment of Wages Act, 1991.

The complainant claims that the respondent failed to provide her with a statement of wages and deductions from wages in accordance with Section 4 of the Act.  Further she claims that there was a deficiency in the payments made to her by the respondent and said deficiency amounts to deductions such as are prohibited under Section 5 of the Act.  The complainant submits that she is entitled to recover monies owing to her by way of salary, increments, pay for holidays, public holidays, sick leave and time off in lieu.  The complainant did not provide any details of the amount of the monies she claims to be owing to her.

Legislation – Payment of Wages Act, 1991

5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

 (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing

to it.

(2), (3), (4), (5) …

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

It is necessary to decide what wages were properly payable by the employer to the employee.  The complainant submitted her complaint to the Workplace Relations Commission on 11 November 2019.  The cognisable period, as provided in Section 41(6) of the Workplace Relations Act, 2015, is 12 May to 11 November 2019.  In that six month period the complaint worked for the respondent between 12 May and 19 July 2019 and again from 23 September to 11 November 2019.

In the period from May to July the complainant was classified as an independent contractor researcher but, as I have already decided, she was an employee on a fixed-term contract of employment.  As she was classified as an independent contractor she submitted invoices each fortnight for the agreed rate, which was €1,700.00.  There is no dispute between the parties that all the invoices submitted by the complainant were paid in full by the respondent.  The claimant claims that a deficiency in payments amounts to deductions contrary to Section 5 of the Act.  The complainant is claiming she should have been paid at a higher rate.

The complainant was always graded as a researcher and the wages properly payable is the rate agreed and accepted between the parties.  In respect of annual leave and public holidays the complainant has brought a separate claim under the Organisation of Working Time Act.  I find that the claim of a breach of Section 5 of the Act in the period 12 May to 19 July 2019 is not well founded.

The complainant did not receive a statement of wages in this period because of she was not considered to be an employee but rather an independent contractor and therefore there was a breach of Section 4 of the Act.

In the period from September to November 2019 the complainant was employed as a researcher on an ‘ongoing’ part-time contract of employment.  The respondent described an ongoing contract as one where the employee has employment for each production season, usually the complainant will work from September to May the following year.  In response to a question from me the respondent clarified that an ongoing contract means the complainant will be working between September and May each year either on the programme she has worked on since 2015 or an alternative if funding for that programme is not available.  In effect the future employment of the complainant is not solely dependent on the funding of one particular programme.

The complainant had accepted the ongoing contract, with reservations, in October 2019 (backdated to September 2019).  The terms of the contract offered were established in line with the agreement, between the respondent and trade union representatives, that followed from the review of independent contractors. 

The complainant claims her terms and conditions of employment did not reflect her level of experience or length of service.  Detailed documents were submitted contending that the method used to calculate the Full Time Equivalent (FTE) for her part-time contract were incorrect.  The respondent used a base of 2288 hours per year based on a 44 hour week.  The complainant submitted that this was a gross figure and the correct base, taking account of annual leave, public holidays and sick leave, should have been 1806.  The complainant is claiming she should have been paid at a higher rate and on a different scale.  While there is some merit in the submission about the method of calculating the appropriate salary, it must be acknowledged that the complainant’s ongoing contract provides for paid annual leave, public holidays, paid sick leave, pension and health insurance and other benefits which must be a factor in considering the totality of the contract.

The Payment of Wages Act is not intended to facilitate a claim for a higher grade or salary.  The terms of an employment contract are agreed between the employer and employee and changes are normally negotiated directly between the parties.  The wages that are properly payable to the complainant are as stated in her contract of employment.  I am satisfied that there was no unlawful deduction from wages in the period from 23 September to 11 November 2019.  There was on administrative error on 05 November 2019 but that was corrected in the following pay period.  I find the claim under Section 5 of the Act in respect of the period 23 September to 11 November 2019 is not well founded.

CA-00032145-003

Claim brought under Section 27 of the Organisation of Working Time Act, 1997.

The complainant claims that the respondent did not provide her with adequate rest periods, did not allow her breaks of 15 or 30 minutes at the appropriate times, required her to work more than an average of 48 hours in a seven day period and did not provide her with proper notice of starting and/or finishing times.  It is alleged the respondent therefore breached Sections 11, 12, 15 and 17 of the Act.  In addition, the complainant claims that she was denied paid annual leave and public holidays in breach of Sections 19 and 21 of the Act.  The complainant asserted that she was an employee of the respondent at all material times.

The respondent rejects the above claims as the Act did not apply to an independent contractor and her current contract contains specific sections dealing with hours of work and holidays. 

The time for the presentation of complaints under the Act is set out in Sections 41(6) of the Workplace Relations Act, 2015 as follows:

Section 41(6) Subject to subsection (8), 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.

The complaint form was received by the Workplace Relations Commission on 11 November 2019 and consequently the period to be considered is from 12 May to 11 November 2019.  However, the complainant submits that in respect of annual leave the domestic legislation must be considered in the context of European legislation which precludes the automatic loss of the period of paid annual leave where the worker does not ask to exercise their right.

Claims under Sections 11,12,15 and 17 of the Act

In the period from 12 May to 19 July the complainant was classified as an independent contractor.  As set out above I have decided she was employed on a fixed-term contract of employment at that time.  As an employee she was therefore entitled to the rest periods, breaks, weekly maximum working hours and notice of start and finish time as required by the Act.  The complainant in her evidence described her working day as did the Head of Production.  It seems to me, based on the evidence, that while there was no detailed recording of working hours per day there was some flexibility about start and finish times which could have benefits for either party.  It is clear from the copies of the invoices provided to me that the complainant did work authorised additional hours from time to time.  When she did so she submitted an invoice for those extra hours and she was paid accordingly.  I am satisfied, on the balance of probabilities, that the claim of breaches of Sections 11, 12, 15 and 17 in the period 12 May to 19 July 2019 are not well founded.

In the period from 23 September to 11 November 2019 the complainant was employed on an ongoing contract of employment.  The details of the hours of work are set out in clause 7 of the contract.  No evidence was provided to me of breaches of Sections 11. 12. 15 or 17 of the Act between 23 September and 11 November 2019.  I find that the claim in respect of breaches of Sections 11, 12, 15 and 17 between 23 September and 11 November 2019 is not well founded. 

Claims under Sections 19, and 21 of the Act.

The complainant was an employee between 12 May and 19 July 2019 employed on a fixed-term contract of employment.  An employee is entitled to annual leave as provided for in Section 19:

19.— (1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an 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 he or she works at least 117 hours, or

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

Provided that if more than one of the preceding paragraphs is applicable in the case

concerned and the period of annual leave of the employee, determined in accordance

with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

And public holidays as provided for in Section 21:

21.— (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

The complainant did not receive any paid annual leave for her period of employment between 12 May and 19 July 2019.  She did not receive payment for untaken annual leave when her employment terminated in July 2019.  There was one public holiday in the relevant period for which the complainant did not receive any payment or compensation.  Her complaints for the period 12 May to 19 July 2019 are well founded. 

Since 23 September 2019 the complainant has been employed on an ongoing contract of employment which includes provision for paid annual leave and public holidays.  There was no complaint under Sections 19 and 21 in relation to the period of employment from 23 September 2019.

The complainant cited the judgements of the CJEU in Max-Planck-Gesellschaft zur Förderung der Wissenschaften eV v Tetsuji Shimizu C-684/16 and King v The Sash Window Workshop Ltd C-214/16 in support of the submission that she was entitled to paid annual leave for the full period of her employment.  As already established the complainant was employed on a fixed-term contract from 06 September 2018 to 19 July 2019.  The claim is for annual leave for the whole period of her employment as a fixed-term employee.

The statutory leave year runs from 01 April to 31 March.  Complaints in relation to leave for the year ending on 31 March 2019 must be submitted within six months from that date.  The complaint was submitted on 11 November 2019 so outside the time limit.  However, the complainant submits that the Act must now be interpreted in accordance with the above decisions and that she was entitled to annual leave for the period 06 September 2018 to 19 July 2019 or payment in lieu on termination of her contract.

In King v The Sash Window Workshop case Mr King had worked on the basis of a ‘self-employed commission only contract’ from 1999 until he retired in 2012.  Under the terms of that contract if he took annual leave, it was unpaid.  On retirement he made a claim for holiday pay for leave accrued but untaken in his final year, leave taken between 1999 and 2012 but unpaid and payment in lieu of leave accrued but untaken throughout the whole period 1999 to 2012.  The Employment Tribunal and the Court of Appeal in the UK held that Mr King was a ‘worker’ within the meaning of Directive 2003/88.  Under UK legislation, implementing Directive 2003/88 a worker was not entitled to carry over periods of untaken annual leave into a new holiday year.  Applying that provision of the UK legislation Mr King had lost his entitlement in respect of annual leave carried over as it was time-barred.  The CJEU held:

The Max-Planck-Gesellschaft zur Förderung der Wissenschaften eV v Tetsuji Shimizu case relates to a refusal to pay an allowance in lieu of paid annual leave not taken on the date of the termination of the employment relationship between the parties.  The Court noted that in earlier judgements it had held that Article 7(1) of Directive 2003/88 does not in principle preclude national legislation, which lays down conditions for the exercise of the right to paid annual leave expressly conferred by the directive, including even the loss of that right at the end of a leave year or of a carry-over period, provided, however, that the worker who has lost his right to paid annual leave has actually had the opportunity to exercise the right conferred on him by the directive (judgment of 20 January 2009, Schultz-Hoff and Others, C‑350/06 and C‑520/06, EU:C:2009:18, paragraph 43).  It further noted that it is settled case-law of the Court that, when national courts apply domestic law, they are bound to interpret it, so far as possible, in the light of the wording and the purpose of the directive concerned to achieve the result sought by the directive.  The CJEU held:

2. In the event that it is impossible to interpret national legislation such as that at issue in the main proceedings in a manner consistent with Article 7 of Directive 2003/88 and Article 31(2) of the Charter of Fundamental Rights, it follows from the latter provision that a national court hearing a dispute between a worker and his former employer who is a private individual must disapply the national legislation and ensure that, should the employer not be able to show that it has exercised all due diligence in enabling the worker actually to take the paid annual leave to which he is entitled under EU law, the worker cannot be deprived of his acquired rights to that paid annual leave or, correspondingly, and in the event of the termination of the employment relationship, to the allowance in lieu of leave not taken which must be paid, in that case, directly by the employer concerned.

There is no dispute between the parties that in the period 06 September 2018 to 19 July 2019 the complainant did not receive paid annual leave.  The respondent’s position is that the complainant was an independent contractor and that the Act does not apply as she was not an employee and under the terms of her contract was not entitled to paid annual leave.  I have decided that the complainant was an employee employed on a fixed-term contract from 06 September 2018 to 19 July 2019 and she is therefore entitled to paid annual leave.  When the contract terminated in July 2019 the complainant was not paid in lieu of untaken annual leave. Her complaint was received by the Workplace Relations Commission on 11 November 2019 and applying the time limits for receiving complaints, contained in the Workplace Relations Act, 2015, her complaint in relation to the period 06 September 2018 to 11 May 2019 is out of time.  While the period 12 May to 19 July 2019 is within the time limit.   The complainant submits, based on the CJEU decisions above, that in these circumstances the domestic law must be disapplied.  In this context reference was made to the CJEU decision in Minister for Justice and Equality v Workplace Relations Commission C-378/17.

Having carefully considered the submissions, written and oral, I am satisfied the complainant was deprived of her right to paid annual leave when she was employed on a fixed-term contract between 06 September 2018 and 19 July 2019 and that she did not receive a payment in lieu of the annual leave when her contract was terminated.  The CJEU in King v The Sash Window Workshop Ltd held that “Member States may not derogate from the principle flowing from Article 7 of Directive 2003/88 read in the light of Article 31(2) of the Charter, that the right to paid annual leave acquired cannot be lost at the end of the leave year and/or of a carry-over period fixed by national law, when the worker has been unable to take his leave (see, to that effect, judgment of 29 November 2017, King, C‑214/16, EU:C:2017:914, paragraph 56)”

The complaint was received within six months of the date of termination of the contract.  In the circumstances of this case I am satisfied that as the complainant was deprived of her right to paid annual leave it is correct to disapply the domestic legislation.  I find that she was entitled to paid annual leave or payment in lieu of untaken annual leave for the whole period of her fixed-term contract from 06 September 2018 to 19 July 2019, which I calculate to be 17.5 days.  I find the complaint brought under Section 19 of the Act is well founded.

The complainant also claimed for public holidays.  The entitlement to compensation for public holidays does not derive from the Directive 2003/88.  The benefit of public holidays derives from domestic legislation contained in the Organisation of Working Time Act and therefor the time limits for receipt of complaints does apply.  There was one public holiday within the relevant period for which the complainant did not receive compensation.  I find the complaint brought under Section 21 of the Act is well founded and she is entitled to compensation in respect of the public holiday in June 2019.

Having regard to all the circumstances I determine it is just and equitable to require the respondent to pay to the complainant compensation in the amount of €7000.00 for breaches of Sections 19 and 21 of the Act.

CA-00032145 – 002

Claim brought under Section 7 of the Terms of Information (Information) Act, 1994

The complainant submits that the respondent failed to comply with the provisions of the Act as she was not provided with a written statement of her terms and conditions of employment and/or changes in the same.  Based on the written and oral submissions I am satisfied that the complainant was provided with written terms and conditions of employment when she was employed on her current ongoing contract of employment in September 2019. 

When she was classified as an independent contractor she was provided with the terms of agreement as an independent contractor.  However, she was incorrectly classified as an independent contractor rather than as an employee.  Therefore, she was not provided with a written statement of the terms and conditions applicable to an employee.  The breach of section 3 of the Act was ongoing throughout her employment from 06 September 2018 to 19 July 2019.  The complaint was received on 11 November 2019, within six months of the date of termination of the contract of employment.   I find the complaint is well founded but I am satisfied that the complainant did not suffer any detriment due to this breach of the Act.  Having regard to all the circumstances I determine it is just and equitable not to award compensation for the breach of Section 3 of the Act.

CA-00032145-001

Complaints under the Protection of Employees (Fixed-Term Work) Act 2003.

Having carefully considered the evidence of both parties, the submissions and the relevant tests as set out above I am satisfied that the complainant was incorrectly classified as an independent contractor researcher when engaged in September 2018.  She should have been classified as an employee working under a fixed-term contract of service from 06 September 2018 to 28 April 2019.  Her period of engagement was extended twice from 29 April to 24 May 2019 and again from 27 May to 19 July 2019.  I find that there was a continuous period of employment from 06 September 2018 to 19 July 2019.  The complainant submitted her complaint to the Workplace Relations Commission on 11 November 2019.  The cognisable six month period is from 12 May 2019 to 11 November 2019. 

To come within the protection of the Act a person must be employed on a fixed-term contract of service.  That is a contract “where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event” (section 2).  The complainant was issued with independent contractor terms of engagement including a start and end date and/or reference to providing service for a specific programme.  Having considered the evidence and the terms of engagement issued to the complainant I am satisfied that she was employed on a fixed-term contract of service from 06 September 2018 to 19 July 2019.  Her complaints under the Act were received on 11 November 2019, within the relevant six month time limit.

Section 9 - Contract of Indefinite Duration Claim

I am satisfied that the complainant has not established that she was employed on continuous fixed-term contracts between 02 April 2012 and 30 November 2014.  The complainant was employed in different roles on each of the two occasions and the specific purpose of each contract was completed when the contracts were terminated.  There was no commitment to future employment on either occasion.

I find the complainant has not established that she was employed on two or more continuous fixed-term contracts between August 2015 and July 2019.  Each engagement terminated when there was no further work for the complainant as a researcher when the programme season ended and there was no commitment to future engagement.  In addition, the aggregate duration of the contracts did not exceed 4 years. The aggerate duration of the contracts between 17 August 2015 and 19 July 2019 is 3 years and 15 weeks.  There was no breach of Section 9 (2) of the Act.  I find the complaint under Section 9 of the Act is not well founded and the complainant has not established an entitlement to a contract of indefinite duration.

Section 6 – Less Favourable Treatment Claim

Having considered the submissions and the evidence presented I am satisfied that the comparator is a permanent employee at researcher grade.  As the complainant was incorrectly classified as an independent contractor she was not provided with paid holidays or compensated for public holidays nor did she receive other benefits that apply to permanent researchers. 

I am satisfied the complainant should have been classified as a fixed-term employee as a researcher between 06 September 2018 and 19 July 2019 and should have had the benefit of paid annual leave and public holidays and other benefits applicable to permanent researchers employed by the respondent.  I find the complaint of less favourable treatment as compared to a permanent researcher is well founded. 

Section 8 – Failure to Provide a Written Statement of Terms Claim

Having considered the submissions I am satisfied that the complainant was provided with terms of engagement as an independent contractor that specified the objective condition determining the contract.  I have found that the complainant was not employed on continuous fixed-terms contracts and therefore there was no breach of section 8(2) of the Act.

Section 10 – Access to Training Claim

I find there was no credible evidence presented that supported this claim.  I find this claim is not well founded.

The Protection of Employees (Fixed-Term Work) Act gives effect to Council Directive 1999/70/EC, the Fixed-Term Work Directive.  As it arises from EU law, redress must be ‘effective, dissuasive and proportionate’.  Having regard to all the circumstances I consider it just and equitable to require the respondent to pay to the complainant compensation of €17,00.00 for the breach of Sections 6 of the Act.

CA-00032145-004

Complaint brought under Section 6 of the Payment of Wages Act, 1991

The complainant submitted her complaint to the Workplace Relations Commission on 11 November 2019.  The cognisable period is 12 May to 11 November 2019.  In that six month period the complaint worked for the respondent between 12 May and 19 July 2019 and again from 23 September to 11 November 2019. 

In the period from 12 May to 19 July 2019 the complainant was classified as an independent contractor researcher but, as I have already decided, she was an employee on a fixed-term contract of employment.  The complainant was always graded as a researcher and I find the wages properly payable was the rate agreed and accepted between the parties.  I find that the claim of a breach of Section 5 of the Act in the period 12 May to 19 July 2019 is not well founded.

The complainant did not receive a statement of wages in the period 12 May to 19 July 2019 because of she was not considered to be an employee but rather an independent contractor and therefore there was a breach of Section 4 of the Act.

In the period from September to November 2019 the complainant was employed as a researcher on an ‘ongoing’ part-time contract of employment.  For the reasons set out above I find the wages that are properly payable to the complainant are as stated in her contract of employment.  I am satisfied that there was no unlawful deduction from wages in the period from 23 September to 11 November 2019.  There was an administrative error on 05 November 2019 but that was corrected in the following pay period.  I find the claim under Section 5 of the Act in respect of the period 23 September to 11 November 2019 is not well founded.

CA-00032145-003

Claim brought under Section 27 of the Organisation of Working Time Act, 1997.

Having carefully considered the written and oral submissions and the evidence presented I am satisfied, on the balance of probabilities, that the claim of breaches of Sections 11, 12, 15 and 17 in the period 12 May to 19 July 2019 are not well founded.

Having carefully considered the submissions, written and oral, I am satisfied the complainant was deprived of her right to paid annual leave when she was employed on a fixed-term contract between 06 September 2018 and 19 July 2019 and that she did not receive a payment in lieu of the annual leave when her contract was terminated.  In the circumstances of this case I am satisfied that as the complainant was deprived of her right to paid annual leave it is correct to disapply the time limit in the domestic legislation.  I find that the complainant was entitled to paid annual leave or payment in lieu of untaken annual leave for the whole period of her fixed-term contract from 06 September 2018 to 19 July 2019, which I calculate to be 17.5 days.  I find the complaint brought under Section 19 of the Act is well founded.

I find the complaint brought under Section 21 of the Act is well founded and she was entitled to compensation in respect of the public holiday in June 2019.

Having regard to all the circumstances I determine it is just and equitable to require the respondent to pay to the complainant compensation in the amount of €7000.00 for breaches of Sections 19 and 21 of the Act.

CA-00032145 – 002

Claim brought under Section 7 of the Terms of Information (Information) Act, 1994

I find the complaint is well founded but I am satisfied that the complainant did not suffer any detriment due to this breach of the Act.  Having regard to all the circumstances I determine it is just and equitable not to award compensation for the breach of Section 3 of the Act.

Independent Contractor

Employee

Fixed-term employee

Contract of Indefinite Duration

Continuous / Successive fixed-term contracts

Payment of Wages