Worker

Employer

Anonymised Parties

An Editor

A Broadcaster/Media Outlet

Representatives

Des Courtney                                                   SIPTU

Louise O’Beirne Solr.,                     Arthur Cox LLP

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00000895

28/11/2022

              This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that all hearings should be conducted fairly. The hearing was not conducted in public as it concerned a dispute brought under Section 13 of the Industrial Relations Act of 1969.

               Industrial Relations disputes are primarily heard on the basis of factual submissions provided by the respective parties. Relevant parties might be invited to give an oral recollection of events, facts and matters within their knowledge. Testimony may be subject to rebuttal by witnesses or other relevant evidence provided by the other side.

               The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 24th June 2022.

               As the within matter is a dispute between parties and brought before the WRC using the Industrial Relations Acts it was heard in private, and the recommendation is anonymised.

               At the completion of the hearing, I did take the time to carefully review all the oral evidence, the oral submissions  together with the written submissions. I have noted the respective position of the parties.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held

               “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

              I believe this principle holds true in the realm of the Industrial Relations Model.

              The Complainant was fully represented by her Union Representative. The Complainant gave a viva Voce account of her relationship with the Respondent entity.  I was provided with a comprehensive submission dated the 28th day of June 2023 . The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form.  When asked to by me, the Complainant prepared a schedule of figures to assist in my understanding of what was being asked of me. No objection was raised to any of the materials relied upon by the Complainant in making her case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

               The Complainant is seeking a back payment of monies which she says that the Employer is bound to pay her for their mischaracterisation of her employment for an eleven-year period. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

              The Respondent had full legal representation at this hearing.  The Respondent provided me with two written submissions dated the 27th of June 2023 and the 19th of June 2024. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case.

               It should be noted that in the course of their submission the Respondent made the case that I do not accept that I have jurisdiction to hear this case.

              Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

               I have carefully considered the respective positions of each of the parties. When it became necessary, I sent the parties away to prepare and provide me with further information and I am grateful to the parties for having met these requests with good grace.

              The Complainant started to work for the Respondent entity in 2008. The Complainant provided editing services at an agreed rate of daily and/or weekly pay. The Respondent and the Complainant entered into a Contract arrangement whereby the Complainant provided her specialised skill as required by the Respondent. The Complainant was an independent Contractor and not an Employee. There are, of course, well recognised pros and cons to each of these classifications of worker and I appreciate that, when she was starting out, the Complainant was simply happy to be engaged in any way by the Respondent entity.

               A pattern of employment ensued over the following years. The Respondent and the Complainant were in a cycle of simply renewing the Independent Contractor Agreement. The Complainant gave evidence that the situation was not satisfactory for her. She always felt very unfairly treated alongside her permanently employed colleagues. The Complainant believed her engagement was precarious and she could be dropped at a moment’s notice. Quite apart from that, the Complainant believed that her terms and conditions were considerably less favourable than her permanent colleagues. The complainant was not entitled to accrued Annual Leave. Nor was she entitled to public holidays or sick pay. The Complainant had two babies in 2009 and 2012 but was afforded none of the Maternity Leave entitlements given to the permanent staff.

               I appreciate the situation was very difficult for the Complainant who felt undervalued and overlooked. I also fully appreciate the sentiment of not wanting to push the boundary for fear of the repercussion if the status quo was challenged. It was in these circumstances that eleven years’ worth of yearly Independent Contractor Agreements were worked through by the parties. I should note that the Respondent rejects the evidence that it knew or ought to have known that the Complainant was anxious to be a permanent member of staff and there is no evidence adduced over and above the Complainant’s own oral evidence to suggest that this had ever been a particular issue.

               The Complainant’s representative has described the situation as having an endless cycle of “bogus” contracts being forced on those in the weakest positions by those persons within the Respondent entity who had the biggest of salaries and  were in the safest of jobs. However, I have to bear in mind that whilst this is a commercial entity it operates more like a not-for-profit organisation which is subsidised with taxpayer’s money. There is, therefore, an obligation on the entity to operate in as lean and efficient a way as might be allowable in law. The situation that allowed for the use (if not exploitation) of Contract workers may not have been satisfactory, but it was not illegal.

              As it happens, a ground swell of dissatisfaction rose up against the existence of so many Contract workers in the years leading up to 2017. By then there were up to 400 sole trader/independent workers working with the Respondent entity. This is a highly unionised workplace and the Unions got in behind this disquiet, to the extent that the Respondent entity had to eventually engage an independent third party to evaluate the status of these 400 employees. In November 2017, the Respondent made a commitment to examine its freelance/contractor contractual engagements. An independent Law firm was engaged for this process and a report issued in June 2018 (the “Report”). In its submission the Respondent has explained the outcome to me as follows:

              The Report found that the majority of those reviewed were appropriately engaged as contractors, however this exercise identified inconsistencies in certain roles where some individuals were hired as staff and others as independent contractors.

               By way of brief overview, the Report included the following finding from a total of 433 contractors reviewed, 106 were assessed as having “attributes akin to employment” and required individual review with regard to their employment status. [The Complainant was one of the 106]

               The Report included the following recommendations:

              (a) The Respondent should introduce an overarching policy and process with regard to the engagement of freelancers;

              (b) The Respondent  should develop clear guidelines as to when and how to engage a contractor or employee; and

             (c) The Respondent should review the contractor population as prioritised and apply the new policy accordingly.

              Following the Report, the Respondent entered into a process with the Trade Union groups recognised to be operating within the workplace.  The purpose was to have a collaborative review of the report and to come to an agreement on the Contractor Review process and to work out a practical implementation in the workplace.  The Respondent recognised that a number of persons (including the Complainant herein) have attributes akin to employment. It was agreed between the parties that any Contract of employment to be offered would reflect the pattern of engagement with the Respondent over the previous two years. The contract of employment would assign the persons concerned to the grade and the pay for the grade appropriate to the nature of their work. It was agreed that if a person to whom a contract of employment was offered disputed the terms of the contract of employment they may request an informal one-on-one meeting with HR to discuss the contract of employment offered.  It was also agreed that if the person continues to dispute the terms of the contract offered as described, the person concerned may appeal the terms of the contract offered to an Appeal Panel

               I note that the process was (at that time) making no finding in respect of a retrospective date of employment and could place the person otherwise than on an established Respondent grade and the pay point associated with that grade

              The Complainant was offered a contract of employment on that basis. The contract offered a commencement date of 2019 and was at 60% full-time employment as this reflected the pattern of engagement with the Employer over the previous two years. The Complainant signed this contract on 27 May 2019 and included a note stating that she would seek assistance from the union with regard to the start date.

               As per the Governing Principles, it was open to the Complainant to appeal her contract in the internal appeal process, but she did not avail of same. In August 2020, the Complainant queried her percentage of full time employment and following a review of same, the Employer offered a new contract of employment that reflected her work pattern between August 2019 and August 2020. She was therefore employed as a part time Editor with a full time equivalent of 69%.

               Separately and unrelated to the above internal industrial relations process, on 8 March 2022, the Respondent  received a decision from the Scope section of the Department of Social Welfare which determined that the Complainant had insurable employment for the purposes of PRSI from 21 July 2008. The Respondent paid €44,316.06 class A PRSI to Scope and confirmed same to the Complainant.

               As I understand it, in the aftermath of the provision of up to 100 similar Contracts of Employment, the issue of retrospective payments came into focus. The same group of Unions agitated on behalf of the newly Contracted Employees (including the Complainant) looking for some recognition of the unpaid monies that would have accrued to people such as the Complainant had their Contracts of Employment been recognised before 2019.

               In essence the Complainant is asking me to make a finding that because the Employer has given the Complainant a Contract of service from 2019, that there is some sort of presumption that a Contract of Employment rightfully existed from the commencement of the employment back to 2008.  In consequence of this, the Complainant is making the case that she is entitled to be retrospectively paid for all the Annual Leave, public Holidays, Maternity leave, pension contributions etc. that would and should have accrued to her had her role as a permanent Employee been recognised from the start of her employment.

               I asked the Complainant to break down this claim for me, and I appreciate the work that the Complainant put into this claim wherein she has calculated what a comparator would have earned over the years as against what she has earned. The Complainant has calculated her losses to be in the region of €238,000.00 spread out over eleven or twelve years. The Complainant is looking for me to recommend the payment of this full gross amount. To do this, I believe I would have to be persuaded that there was some equitable if not legal entitlement to such a level of back payment –  and I am aware that legal and equitable rights are concepts which sit uneasily in any Industrial Relations setting.

               For me to make such a recommendation, the Complainant must be in a position to provide some compelling reason which would persuade me that a Contract clearly intended (by the Respondent) to operate going forward, somehow also creates an implied retrospective Contract going backwards in time.

              sS it happens and before the Complainant had brought her complaint to the WRC  the Respondent did engage with the Unions in 2021 to address areas of retrospection. Two independent facilitators were engaged to consider the issues presented by the Employer as well as the Employees through their Unions. Both parties committed to engaging constructively with the independent facilitators to progress matters to an agreed outcome. They agreed a Terms of Reference and there followed a multiplicity of engagements between the Facilitators and the parties over the period April to August 2022. The Final independently prepared Proposal from the Joint Facilitators was published on 10 August 2022 (the “Retrospection Agreement”). The Respondent and the Unions seemingly accepted that the terms offered were the best terms available under the Industrial Relations process.

              The Retrospection Agreement set out the following proposal for the relevant Respondent employees:

               “Recognition of Past Continuous Service – [the Respondent] will propose a service commencement date for each Employee that will be recognised as the start date for any future Redundancy calculations, mortgage application purposes, and any service-related annual leave. This will be based on the SCOPE assessment and should be forwarded to each person covered by this Proposal by the 31st August 2022.

              Maternity leave –any staff member covered by this agreement who would have been entitled to Maternity leave will receive a top up payment of €5,000.00 (via payroll) per Maternity leave period. This will apply to verified Maternity leave for the period 1st Jan 2013 to the formal acceptance of their employment contract in 2019.

              Paternity Leave - any staff member covered by this agreement who would have been entitled to Paternity leave will receive a top up payment of €750 euro (via Payroll) per Paternity Leave period. This will apply to verified Paternity leave for the period 1st Jan 2013 to formal acceptance of their employment contract in 2019.

               Ex Gratia Lump sum – the Joint Facilitators are aware that the employees covered by this process are a very diverse grouping in terms of service, earnings and working hours. Therefore, we believe that the fairest approach is through a schedule of ex gratia payments which should be applied on a pro rata basis, (based on the 2019 contract FTE offer).”

               By the end of August 2022, the Complainant was advised that under the terms of the Retrospection Agreement:

             “This is how this proposal would benefit you should you accept it in full:

               Lump Sum: An ex-gratia lump sum payment of €10,500* would be made to you based on your past continuous service and your full-time equivalent (FTE) service as accepted by you as part of the Eversheds Contractor Review Process. This gross lump sum can be paid directly to you via payroll or as an AVC into an approved ….[Employer] pension scheme. * Calculation (€17500*0.60)

               Service Date: Your service date for the purposes of future redundancy and salary certificates obtained for mortgage applications is 21/07/2008. This date is based on the date of your PRSI insurable employment as decided upon by the Department of Social Protection Scope section. In addition, your annual leave will be adjusted to reflect this commencement date on a go-forward basis.

               Maternity/Paternity Leave Payments: In the event you would have been eligible for maternity or paternity leave from the start date above (or 1st January 2013 whichever is the most recent), then you would receive a €5,000 gross payment per maternity leave period or €750 gross payment per paternity leave period. A birth certificate or other documentary evidence will be needed to avail of this payment.

               An adjudication process will be put in place to decide on issues and disputes relating to the above. The decision of the adjudicator will be final. A separate letter will issue in September which employees will need to sign in full and final settlement of all claims related to this matter.

              This means that you cannot pursue an action in any other fora relating to these matters if you accept this proposal. For those who are engaged in an external process in respect of these matters you will need to choose between accepting this proposal and proceeding with that process. For the avoidance of doubt this proposal cannot be accepted in addition to a third-party settlement or award.

              Please take time to fully consider the above before making your decision.

               Given that the Complainant believes that she should have been getting paid in the region of €238,000.00 I can understand that the sum of €10,500.00 would have been unacceptable to her. To soften the blow the Complainant sought the Maternity payments which were referenced but as both her babies were born outside the six-year period agreed in the Retrospection Agreement, she was not eligible.

               I accept that the Respondent and the Complainant have a good day to day Employer /Employee relationship and that the complainant is very happy in the workplace and never more so than when she became a permanent Contracted Employee.

              The Complainant sought to re-negotiate and/or Appeal a better outcome but met with no success. The Respondent was sympathetic to the Complainant, but felt bound by the terms of the Retrospection Agreement which had been fully negotiated as part of an in-house IR process and there was seemingly no wiggle room to accommodate the Complainant.

              The Complainant was, in the circumstances, not satisfied to sign up to the Retrospection Agreement insofar as it applied to her. She did not take the lump sum on offer, and I assume that if she were to be made Redundant at the moment there is no guarantee that a start date going back to 2008 would be honoured and applied.

              Elsewhere, it has been noted, that the vast majority of Employees who had been given Contracts of employment in 2019 and who had also accepted the terms of the Retrospection Agreement were also obliged to sign away their entitlement to pursue an action in any other forum in relation to any and all issues relating to these matters. The Complainant Representative has highlighted this particular prohibition as it tends to suggest that the complainant is therefore allowed to raise these issues before the WRC in the way that she has. I think that this is an absolutely correct conclusion. The Complainant has not signed away her right to have this or any issue brought before the WRC or the Civil Courts. I would further suggest that bringing this dispute to the WRC does not (it seems to me) in any way negate the Complainant’s entitlement to litigate her Contract or the historic Contractual relationship in the High Court. However, I am dealing with a dispute raised under the Industrial Relations legislation and as such the issues raised must be viewed through the Industrial Relations lense.

              As I see it, the Complainant might be seen as attempting to leverage a result out of the fact that she obtained a Contract of Employment in 2019. This Contract of Employment was achieved under an Industrial Relations negotiation. I have to be conscious of the fact that the provision of this Contract of Employment in 2019 was not mandated by a Court of Law or by implementation or operation of a Statute of Law.  The Contract of Employment was provided in good faith on foot of a protracted industrial negotiation entered into by all the relevant parties. Indeed, I note that the 100 or so Contractors were allowed to opt out of getting provided with a formal Contract of Employment in the same way as the Complainant was allowed to opt in. In fact, it seems to me that the Complainant has opted in to the first part of the process and then opted out of the second part of the process. This is not a criticism. It tends to show that this was an entirely voluntary process and did not come about by operation of Law.

              I cannot see therefore how the provision of  a Contract of Employment in 2019 on foot of industrial Relations talks  can operate to create backdated benefits which are clearly unintended Contractual arrangement between the parties. It is quite simply not legally tenable.

               I am absolutely satisfied that the Contract of Employment bestowed on the Complainant in 2019 arose on foot of an in-house industrial relations negotiations. The limited retrospective benefits flowing from the arrangement are, to my mind, further testament to the fact that this was all part of a negotiation process which pushed the Respondent Employer so far but no further.

               It is against this backdrop that the Complainant has brought this matter before the Adjudication Services. She is, incorrectly in my mind, asserting that more rights and entitlements flow from the provision of this Contract of Employment then seems conceivable in an IR Consultative Process. Certainly, the Respondent rejects absolutely the Complainant’s entitlement to assert that she was a Contracted Employee for any part of the eleven period prior to 2019.

              Quite apart from the foregoing, the Respondent has asked me, by way of preliminary issue, to refuse jurisdiction to hear this case. This is an Industrial Relations claim under section 13 of the Industrial Relations Act 1969. The relevant section reads:

              13.—(1) F16[…]

              (2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

              The import of this Section is quite clear. The Adjudication process has no jurisdiction when it comes to hearing disputes connected with the rates of pay of a body of workers. Nor can the Adjudication process hear a dispute connected with the hours of work, the time of work or the annual holidays of a body of workers. The Respondent respectfully submits that the Adjudicator should decline jurisdiction and not issue a recommendation in this case as this is a dispute that is directly connected with “rates of pay of, hours or times of work of, or annual holidays of, a body of workers”.

               It has long been the practise of the Labour Court and other Industrial Relations bodies (Rights commissioners/Adjudication Officers) to decline jurisdiction where the recommendation being sought by an individual is bound to have an impact on a body of workers. The Respondent is asserting that the claim being made by the Complainant to the tune of €238,000.00 over an eleven-year period, amounts to a rate of pay issue which, if she were to succeed, would impact a body of workers. The raising of a dispute before the Adjudication forum is not intended to create a precedent for others claims to be brought. A recommendation under the IR Acts should ideally have a neutral impact in the workplace.  The Respondent suggests that any concession of the claim beyond the provisions of the Retrospection Agreement reached between the parties will have implications well beyond the Complainant. It has been pointed out to me that since lodging her claim before the WRC at least seven other co-employees have issued similar complaints.

               It has been put to me that the Respondent has a robust Industrial Relations architecture that has been built up over many years in conjunction with the Trade Union Group. This includes provision for local level engagement with internal Union Representatives, the involvement of external Trade Union Officials and ultimately the facility to refer collective matters to an internal Industrial Relations Tribunal. It has been suggested to me that this matter coming before the Adjudication process is particularly significant in that it creates the potential to undermine the long standing and agreed Industrial Relations processes between the Respondent and the Unions. I think this is, perhaps, overly dramatic. As noted:

               Any contention that the processing of a complaint through the WRC by [the Respondent] would have catastrophic effects on the internal I.R. processes of [the Employer] is unfair. On the contrary, we believe that dealing with legacy issues of this nature builds trust in the I.R. machinery and the parties’ abilities to resolve issues through those procedures rather than through other, less harmonious, processes.

               However, I am inclined to revert to my earlier point that it does not seem plausible that something that was only gained or achieved by way of internal engagement should then be used to leverage something that was never intended in the course of that engagement. To allow that could serve to undermine the voluntary nature of the industrial relations processes. If I accede to the Complainant’s claim I would undoubtedly be exposing this Employer to the potential of the other 99 Employees coming back and looking for monies over and above that which was offered and  agreed to in a voluntary consultative process. It is not the function of the Adjudicator to so undermine a process whereby a collective agreement has been reached.