ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00054701
Parties:
| Complainant | Respondent |
Parties | Joseph Kelly | Raidio Teilifis Eireann (RTE) |
Representatives | Martin McMahon | Seamus Given, Arthur Cox LLP |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00066581-001 | 09/10/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00066581-005 | 09/10/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00066581-006 | 09/10/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00066581-008 | 09/10/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00066581-009 | 09/10/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00066581-010 | 09/10/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00066581-011 | 09/10/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00066581-013 | 09/10/2024 |
Date of Adjudication Hearing: 12/12/2024, 26/06/2025
Workplace Relations Commission Adjudication Officer: John Harraghy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
The parties were advised at the outset that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer on 06/04/2021 that hearings before the Workplace Relations Commission are now held in public. That may result in decisions no longer being anonymised. Both parties were advised that an Adjudication Officer may take evidence on oath or affirmation.
The parties were also notified of these changes by the WRC in the letter confirming details of the hearing.
The Complainant was represented by Mr Martin McMahon and the Respondent was represented by Mr Seamus Given, Arthur Cox. The Complainant, Mr Joseph Kelly, gave evidence on oath. Ms Angela McEvoy, Senior HR Manager, RTE gave evidence on oath.
While the parties are named in this document, from here on, I will refer to Mr Joseph Kelly as “the Complainant” and to Raidió Teilifis Éireann (RTE) as “the Respondent.”
The parties’ respective positions are summarised hereunder followed by my findings and conclusions and decision. I received and reviewed documentation prior to the hearing. All evidence and supporting documentation presented has been taken into consideration.
Background:
The Complainant commenced working with the Respondent on 21/09/2012 as a Media Content Coordinator. He was engaged as an independent contractor and paid €200 per day. On 12/01/2018 the Complainant was employed as a Media Content Contractor and paid on point 4 of the applicable salary scale of €33,985 to €49,354. On 01/12/2023 the Complainant was appointed to the role of News Coordinator, and he was placed on point 12 of the salary scale of €37,567 to €59,862. The Complainant submits that for his initial period of engagement from 21/09/2012 until 12/01/2018 he was required by the Respondent to become a contractor and to register accordingly with Revenue. The Complainant has submitted a number of complaints to the WRC under various employment rights legislation and claims that as a consequence of having to become self-employed, he has lost out on public holiday entitlements, annual leave entitlements, sick leave entitlements and incremental credit. He is seeking to have his loss of earnings for that period corrected and the necessary adjustments to his current salary made.
The Respondent submits that the Complainant submitted these complaints to the WRC on 09/10/2024 and given the limitation period in the act the cognisable period is 10/04/2024. The Respondent submits that the Complainant has been properly paid and given all his public holiday and annual leave entitlements within the cognisable period. The Respondent also submits that Section 41, Subsection 6 of the Workplace Relations Act 2015 clearly states that an Adjudication Officer “shall not entertain” a complaint which is referred after the expiration period of 6 months from the date of the alleged contravention. These complaints are submitted outside the statutory time and the WRC has no jurisdiction to hear or extend the time limit beyond a 12-month period. |
Summary of Complainant’s Case:
It was the practice of the Respondent to request the Complainant to register as self-employed. A contract confirming that was issued to the Complainant. The Complainant remained as self-employed, and this was renewed on an annual basis until he became an employee on 12/11/2018. The Complainant was required to provide services as required by the Respondent. The matter of bogus self-employment was the subject of a review by an independent law firm and also a review by the Department of Social Protection. The Complainant was not informed that he was included in these reviews and when the matter was concluded the Respondent received a decision and had to make a payment in the region of €30,000 to the Department of Social Protection in order to regularise the Complainant’s contributions as an insurable and A class PRSI. As a result of this the Complainant lost out on any entitlement to Sunday Pay, Public Holiday entitlements, Annual leave, sick leave and any other entitlement that a permanent employee would have. The complaint has continued to lose out due to the consequential effects of his initial employment misclassification. He has made numerous efforts to engage with the Respondent to resolve this but without success. The Complainant was not responsible for the misclassification and the Respondent is not denying that they did offer the Complainant the role on the basis that he would be registered as self-employed. He is seeking to have all his entitlements rectified and regularised so that he does not have any loss due to the error which it is submitted was accepted by the Respondent when it did not appeal the decision from the Scope Section of the Department of Social Protection. |
Summary of Respondent’s Case:
The Respondent submits that the WRC had no jurisdiction to hear these complaints as they fall outside the applicable cognisable period at specified in Section 41(6) of the Workplace Relations Act 2015. The complaints are misconceived. The relevant cognisable period is six months from the date of submission of the complaints and in that context the Complainant has received all his entitlements to Sunday pay, Holiday Pay, Public Holiday Pay and annual leave entitlements for the period relevant to these complaints, 09/10/2024 to 10/04/2024. |
Findings and Conclusions:
The Complainant has submitted a total of 8 complaints seeking adjudication by the WRC. These complaints, which are listed above, relate to pay, public holiday entitlements, annual leave and terms and conditions of employment. The Complainant provided extensive documentation in relation to the context, background and his attempts to seek a resolution to this with the Respondent. It is clear that the Complainant and his representative has committed a considerable amount of time and research with this issue and is seeking to progress his complaints to a satisfactory conclusion. The Complainant has submitted his complaints to the WRC by way of a complaint form dated 10/09/2024. In his evidence at the hearing on 26/06/2025 the Complainant confirmed that all of the issues in relation to these complaints have arisen as a result of his employment status from 21/09/2012 to 12/11/2018. He was engaged as a contractor, as required by the Respondent, during that time and was not afforded any of the rights that an employee would have accrued. It is the Complainant’s position that he continues to have a loss as a result of what he terms “the misclassification of his employment status”. As an Adjudication Officer my role is to apply the law to the facts. The starting point for my consideration is in relation to my jurisdiction to hear the complaints. The facts are that the complaints were submitted on 10/09/2014 and the evidence was that the contravention for all eight complaints relates to the period 21/09/2012 to 12/11/2018. Section 41 (6) and (8) of the Workplace Relations Act, 2015 states as follows “(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. (8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”. Adjudication Officers of the WRC are creatures of statute and can only consider complaints submitted within the statutory time frame provided by relevant legislation. Adjudication officers are not empowered to modify time frames or accept complaints which do not fall within the time frames outlined in the legislation. It is clear that the complaints in this case fall not only outside a period of six months but also the twelve-month extension period. Consequently, I have no jurisdiction to hear and consider these complaints. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaints in this case falls not only outside a period of six months but also the twelve-month extension period. Consequently, I have decided that I have no jurisdiction to hear and consider these complaints. |
Dated: 01-08-25
Workplace Relations Commission Adjudication Officer: John Harraghy
Key Words:
Time frame. Jurisdiction. |