A TV researcher has been awarded €24,000 in compensation after a media organisation was found to have illegally denied her holiday pay.
Neither of the parties were named in a written decision published this morning by the Workplace Relations Commission, which found the media organisation had breached the Organisation of Working Time Act and the Protection of Employees (Fixed-term Work) Act.
The case was heard in its entirety on a series of dates between February 2020 and March 2021, before the law was changed to reflect the Supreme Court ruling that WRC cases be heard in public.
The complainant started work for the media organisation in April 2012 as a researcher working as an independent contractor before taking a 12-month contract covering maternity leave in November 2013, the commission was told.
She then returned as an independent contractor for three more periods lasting between nine months and 20 months between 2015 and 2019.
James Doran BL said it was his client’s position that she had done comparable work as staff at the grade of assistant producer and that she had acquired the right to a contract of indefinite duration on the basis of successive fixed-term contracts.
He argued his client was due the pay of an assistant producer and had been denied paid holidays in breach of the Payment of Wages Act and the Organisation of Working Time Act.
In her direct evidence, the complainant said the work she did was “no different” to that carried out by PAYE employees of the organisation.
She wanted to be made an employee rather than an independent contractor or freelancer but was told “this would not be permitted by HR”.
She started work most mornings between 8am and 8.30am and “often worked 12- to 14-hour days when filming”, she said.
Time off in lieu was “often promised but not provided due to the demands of the schedule” with her working hours “directed by her manager”.
She said she had accrued 166 days of time off in lieu.
The complainant said although she was described as a researcher she “frequently did work at the level of assistant producer” including the work of a digital content creator, which involved producing items and shooting and editing reports.
She said her experience “was not recognised” when it came to setting the pay for her current contract.
Although employees got annual increments she “had to negotiate with her manager” who “set the rate of pay she received for the independent contract work”, she said.
When she was offered a part-time researcher contract in July 2019, following the internal review, she said she was “placed on a point on the researcher scale that was below that of less experienced employees”.
The pay “did not reflect her working hours” and was in her view a reduction in pay, she said.
In evidence, the company’s head of HR said talks with trade unions after a review by consultants in 2018 had been “difficult” and contracts of employment were ultimately offered to 81 freelancers out of 433 whose status was reviewed.
The HR manager told the WRC the contracts offered reflected the pattern of engagement over the preceding two years and that the workers were “assigned the grade and salary point appropriate to the nature of the work to be performed”.
The media organisation’s head of production gave evidence that the complainant was doing the work of a researcher as a freelancer and he “did not recognise” that she was doing “anything more”.
He said he had asked the researcher to do work on digital content as she wanted to be a reporter on news programming but this “did not work out as it was too much”.
He rejected the suggestion she was an assistant producer.
He accepted under cross-examination that freelancers had their hours of work set by their manager and that the rate paid to them was decided between him, the HR department, and the finance department.
The media organisation, which was represented by Séamus Given of Arthur Cox Solicitors, maintained the contract it offered the respondent was “fair, reasonable and reflects the established salary scale and standards as agreed with the unions”.
Mr Given said the complainant was “unable to demonstrate continuous service” to back up a claim for a legal entitlement to a contract of indefinite duration and had not aggregated four years’ service.
He argued the complainant was an independent contractor and therefore not entitled to claim for her last period of work before taking up employment. Mr Given urged the WRC to reject the complaints.
“I am satisfied, based on the evidence, that the complainant was not in business on her own account. In my opinion the complainant’s work was an integral part of the business of the respondent,” wrote adjudicating officer Maria Kelly in her decision.
The researcher worked at the direction of her manager on site or on location using equipment supplied by the company and did not invest in the business, she noted.
She ruled the complainant had been “incorrectly classified as an independent contractor researcher when engaged in September 2018” and should have been an employee.
Adjudicating officer Maria Kelly wrote in her decision that the complainant had failed to establish that she had the right to a contract of indefinite duration on the basis of continuous fixed-term contracts.
The specific purposes of two earlier contracts between 2012 and 2014 “was completed when the contracts were terminated” and the aggregate duration of later contracts between August 2015 and July 2019 amounted to 3 years and 15 weeks, Ms Kelly found – several months short of the four-year threshold for a claim.
Ms Kelly upheld a complaint of less favourable treatment under the Protection of Employees (Fixed Term Work) Act, finding the complainant ought to have been treated the same as a permanent employee at researcher grade in terms of benefits between September 6, 2018 and July 19, 2019.
The adjudicator ruled that the complainant was “not provided with paid holidays or compensated for public holidays” or the benefits she would have been entitled to as a member of staff.
Ms Kelly wrote that the breach of Section 6 of the Fixed-Term Work Act required “effective, dissuasive and proportionate” redress – and awarded €17,000 in compensation.
She also found the researcher was “deprived of her right to paid annual leave” when she was on a fixed-term contract between September 6, 2018 and July 19, 2019.
The researcher ought to have been paid 17.5 days’ annual leave and been compensated for the June bank holiday in 2019, the adjudicator found.
She therefore upheld a complaint under the Organisation of Working Time Act and awarded a further €7,000 for the breaches.