A senior human resources manager at RTÉ has denied at the Workplace Relations Commission (WRC) that it got a media worker to “misrepresent his employment status” to the taxman to get shifts in its newsroom.
The worker, Joseph Kelly, claims he was denied the statutory entitlements to paid leave and Sunday premium pay that would normally accrue to an employee while he was engaged by the broadcaster under a “freelance” contract between 2012 and 2018.
The State broadcaster, however, argues that Mr Kelly was paid all Sunday premiums owed, along with annual leave and public holidays.
RTÉ was found liable for a €36,000 bill for the period by the Department of Social Protection after it ruled in 2022 that Mr Kelly had been employed since 2012.
However, it maintains the ruling only pertains to insurability of employment and that the claims are out of time.
Questioned repeatedly about Mr Kelly’s status at a hearing on Thursday, a senior human resources manager at RTÉ said: “We absolutely accept the insurability decision. The reality was that the contract Joseph signed was a sole trader agreement. I can’t rewrite history, that’s what it was.”
The WRC was hearing evidence in complaints brought under the Organisation of Working Time Act 2005 and the Terms of Employment (Information) Act 1994 by Mr Kelly.
Mr Kelly’s representative, Martin McMahon, said the Department’s Scope ruling showed his client “should have been treated as an employee” by RTÉ since 2012, and it therefore followed that he had been denied various pay-related statutory rights set out in his complaints.
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Mr Kelly claims he was denied the entitlement to paid annual leave, not paid for public holidays, and did not receive a premium for Sunday work from 2012 to 2018. He further alleges he was not provided with a statement of his core terms of employment.
Giving evidence on Thursday, Mr Kelly said: “The way I was brought in was by word of mouth. My name was given to a guy, I was brought in, talked to a manager, it was a casual interview. When I was coming in, HR said I had to be a sole trader, so I became a sole trader,” he said.
Mr Kelly said his job at that time in the broadcaster’s media ingest department from 2012 to 2018 was to “cover the guys in the room” – all of whom were RTÉ employees – and to do “whatever was needed of me”.
It was a “high-pressure role” where Mr Kelly and his co-workers received and organised multimedia material and recorded news feeds from across the world in preparation for news broadcasts, the complainant said.
“I wouldn’t have received time off. It’s famine or feast – you might have a month where you might get two days; you might have a month where you only get two days off,” Mr Kelly told the hearing.
This situation continued from 2012 to 2018, when the ingest room manager “got a promotion” and an employee “moved up” into the management position, leaving an open vacancy, whereupon he “became staff”, Mr Kelly said.
He told the WRC that due to the fact he was self employed, he “wasn’t allowed” to apply for internal jobs. Having received a staff contract, he later secured a more senior position as a newsroom co-ordinator in 2023, he said.
He also said he believed he should have got incremental pay rises and could have advanced to a more senior role more quickly if he had access to internal staff competitions and that he “should be on a higher rate than I’m on now”.
Addressing Mr Kelly’s current contract in cross-examination, RTÉ’s solicitor, Seamus Given of Arthur Cox, put it to the complainant that he was on point 12 of a 14-point salary scale in his current role, after 11 years’ service.
“I’m putting it to you are correctly positioned,” Mr Given said.
“Well, I would say no,” Mr Kelly said.
Angela McEvoy, a senior HR manager at RTÉ, gave evidence that in that period Kelly was paid all Sunday premium owed, along with annual leave and public holidays, referring to a payroll report submitted by the broadcaster.
Questioning Ms McEvoy, Mr McMahon said: “Joseph was an employee of RTÉ from 2012 to 2018, that’s the legal position, uncontested by RTÉ. Joseph’s increments would be different if RTÉ accepted all those years of service, yes or no?”
“No, we’re saying not, because Mr Kelly is on point 12 of the salary scale, that is obviously close to the top of the salary scale,” Ms McEvoy said.
Asked whether RTÉ informed Mr Kelly that he had been “misclassified as self-employed” when he was first put on an employment contract in 2018, Ms McEvoy said: “No, because there was no need to do that. There was no need to inform Mr Kelly of anything like that.”
“Joseph was offered employment in RTÉ, but legally Joseph had been an employee from 2012, do you accept that?” Mr McMahon said.
“No I don’t,” Ms McMahon said.
“You’ve accepted it in Social Welfare, why won’t you accept it here?” Mr McMahon asked.
“What RTÉ accepted is a PRSI insurability decision going back to 2012,” the witness said.
Mr McMahon continued to press Ms McEvoy on this point for some time and received the same answer.
She said at one stage: “You’re saying there’s a contract of employment. We absolutely accept an insurability decision. The reality was that the contract Joseph signed was a sole trader agreement. I can’t rewrite history, that’s what it was,” she said.
Addressing the contract for services signed by Mr Kelly in 2012, Mr McMahon put it to her that RTÉ “has the power in that situation” and that there was “no negotiation” of its terms.
“I don’t accept what you’re saying. There is a choice for an individual to sign or not. Nobody is forced to sign,” she said.
She agreed that it was a term of the contract that a worker “had to be registered as self-employed in order to access a self-employment agreement” with RTÉ at that time.
Mr McMahon said it was an offence to “procure an employee to misrepresent themselves to the Revenue Commissioners”.
“In the contract, black and white, [it states] RTÉ has to receive written confirmation from the Revenue Commissioners that Joseph can be treated as self-employed for tax purposes,” Mr McMahon said.
“Do you accept RTÉ did procure Joseph to misrepresent himself to Revenue?” Mr McMahon said.
“Absolutely not,” Ms McEvoy said.
Adjudication officer John Harraghy has concluded his hearings into the matter and will issue his decision in writing to the parties in due course.
