ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00054211
Parties:
| Complainant | Respondent |
Parties | Maebh Keary Di Lucia | Raidió Teilifís Éireann |
Representatives | Self-Represented | Louise O'Byrne of Arthur Cox LLP |
Complaints:
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-00066007-001 | 16/09/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997 | CA-00066007-005 | 16/09/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997 | CA-00066007-006 | 16/09/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997 | CA-00066007-008 | 16/09/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997 | CA-00066007-009 | 16/09/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994 | CA-00066007-010 | 16/09/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994 | CA-00066007-011 | 16/09/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00066007-012 WITHDRAWN
| 16/09/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994 | CA-00066007-013 | 16/09/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994 | CA-00066007-015 | 16/09/2024 |
Date of Adjudication Hearing: 15/09/2025
Workplace Relations Commission Adjudication Officer: Christina Ryan
Procedure:
In accordance with section 41 of the Workplace Relations Act 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard and to present evidence relevant to the complaints.
This matter was heard by way of a remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the Workplace Relations Commission (hereinafter referred to as “the WRC”) as a body empowered to hold remote hearings.
The parties are named in the heading of the Decision. For ease of reference, for the remainder of the
document I will refer to Maebh Keary Di Lucia as “the Complainant” and Raidió Teilifís Éireann as “the Respondent”.
At the adjudication hearing, I advised that in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the WRC are now held in public and that the Decision would not be anonymised unless there were special circumstances for doing otherwise. There was no application to have the matter heard in private or to have the decision anonymised.
I advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. All evidence was given under oath or affirmation.
I allowed the right to test the oral evidence presented by way of cross-examination.
Both parties attended the hearing and were afforded a full opportunity to present evidence and make submissions. The parties were also afforded the opportunity to respond to the evidence and submissions made by the other party.
The parties’ respective positions are summarised hereunder, followed by my findings and conclusions and decision.
At the commencement of the hearing, the Complainant withdrew complaint bearing reference CA-00066007-012: European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012.
Background:
These complaints were referred to the WRC on 16 September 2024. They arise under the Organisation of Working Time Act 1997 and the Terms of Employment (Information) Act 1994 and relate to the period from 2004 to 2010, during which the Complainant asserts that she was an employee of the Respondent and was thereby deprived of statutory employment rights. The Respondent disputes that the Complainant was an employee during that period and submits that she provided services on a self-employed basis. The Respondent further disputes the complaints and contends, inter alia, that the claims are out of time. |
Summary of Complainant’s Case:
The Complainant submits that she was misclassified as self-employed between 2004 and 2010 and that she was in reality an employee of the Respondent during that period. She relied on findings of the Scope Section of the Department of Social Protection and the Social Welfare Appeals Office, which she submits determined that she was an employee during the relevant period. She also relied on correspondence from the Revenue Commissioners, which she states recorded her status as an employee for that period. The Complainant submits that these findings demonstrate that she was an employee and that she thereby lost statutory employment rights during the relevant period. |
Summary of Respondent’s Case:
The Respondent denies that the Complainant was an employee between 2004 and 2010 and submits that she provided services on a self-employed basis during that time. The Respondent further submits that the complaints are statute barred, as the matters complained of relate to events occurring between 2004 and 2010, whereas the complaints were not referred to the WRC until September 2024. The Respondent also submits that determinations made by the Scope Section of the Department of Social Protection or by the Revenue Commissioners are not binding on the WRC in determining employment status under employment rights legislation. |
Findings and Conclusions:
I have considered all of the evidence and submissions presented by the parties. In reaching my findings, I have had regard to the relevant statutory provisions, the applicable legal principles, and the particular circumstances of this case.
PRELIMINARY ISSUES Two preliminary issues arise for determination:
Employment Status The statutory protections relied upon by the Complainant apply only where an individual establishes that they are an employee within the meaning of the relevant legislation. The burden of establishing that an employment relationship existed rests with the Complainant. In determining this issue, I have had regard to the legal principles governing the distinction between employment and self-employment as developed in Irish case law. The Complainant advanced a number of arguments at the hearing in support of her contention that she was an employee. In particular, she submitted that she was paid for the work performed, that she personally carried out the work, and that in practice she worked in a similar manner to members of the Respondent’s staff. She further argued that the independent contractor contract should be disregarded and that the factual reality of the relationship should prevail. While those matters have been considered, they do not of themselves establish that the relationship between the parties was one of employment. The determination of employment status requires an examination of the overall factual circumstances of the relationship. The Complainant also relied on findings of the Scope Section of the Department of Social Protection and the Social Welfare Appeals Office, together with correspondence from the Revenue Commissioners. While I note the contents of those documents, including correspondence from the Revenue Commissioners recording the position on their records and reflecting, in part, the outcome of a Scope assessment, decisions of other statutory bodies made for the purposes of social welfare or taxation legislation are not binding on the WRC when determining employment status under employment rights legislation. The question of employment status must therefore be determined on the evidence before me concerning the reality of the relationship between the parties. In this regard, I note the observation of the High Court in National Museum of Ireland v Minister for Social Protection [2016] IEHC 135 that determinations made under different statutory schemes concerning employment status are not binding on one another. I also note that the Complainant seeks to retrospectively characterise a working relationship which existed between 2004 and 2010 as one of employment. Where such a finding is sought many years after the events concerned, it is particularly important that the evidential basis for such a conclusion be clear and persuasive. In the present case, the evidence before me is not sufficient to permit me to conclude that the relationship between the parties during the period 2004 to 2010 was one of employment. I note that a very substantial volume of documentation was submitted by the Complainant, including a file in excess of 400 pages, a further file in excess of 4,000 pages, and additional supporting materials. However, notwithstanding the extent of that documentation, it was not opened, explained or verified in oral evidence by the Complainant or on her behalf. In those circumstances, I am unable to attach evidential weight to that material or to rely upon it for the purpose of making findings of fact. Further, the Complainant did not provide sufficient oral evidence addressing the nature of the working relationship, and the documentary material submitted, in the absence of supporting oral evidence, does not provide a sufficient basis upon which findings of fact could be made. Accordingly, I find that the Complainant has not established, on the evidence before me, that she was an employee of the Respondent during that period. This conclusion reflects the absence of sufficient evidence to establish an employment relationship and does not constitute a positive finding that such a relationship did not exist.
Statutory Time Limits For completeness, I have considered the issue of statutory time limits. Complaints under the Organisation of Working Time Act 1997 and the Terms of Employment (Information) Act 1994 must generally be presented within six months of the alleged contravention, which period may be extended to twelve months where reasonable cause is established. The complaints before me were referred to the WRC on 16 September 2024 and relate to matters said to have occurred between 2004 and 2010. In those circumstances, save for the claim concerning annual leave entitlement, the complaints would clearly fall significantly outside the statutory time limits provided for in the relevant legislation. In relation to annual leave, I note the principles arising from the decision of the Court of Justice of the European Union in King v The Sash Window Workshop Ltd C-214/16 and Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V. v Tetsuji Shimizu C-684/16. The application of those principles presupposes that the individual concerned has first established that they were an employee within the meaning of the relevant legislation. In circumstances where I have found that the Complainant has not established that she was an employee of the Respondent during the relevant period, the issue of accrued annual leave entitlement does not arise. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Having considered each of the complaints individually and having regard to the findings set out above, I make the following decisions in respect of each complaint. For the reasons set out above, I find that the Complainant has not established that she was an employee of the Respondent during the period relied upon. Accordingly, the following complaints are not well founded: Organisation of Working Time Act 1997
Terms of Employment (Information) Act 1994
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Dated: 30-03-26
Workplace Relations Commission Adjudication Officer: Christina Ryan
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