RTÉ lawyers accused of ‘running down the clock’ in compensation case

Lawyers for RTÉ are engaging in “sharp practice” and attempting to “run down the clock” on a commitment to compensate those who lost money through “bogus self-employment”, an advocate for a newsroom employee has told the Workplace Relations Commission (WRC).

The State broadcaster’s counsel said, however, that the employee’s representative was “making submissions on a soapbox for the media”.

On Thursday, RTÉ's lawyers argued the worker – newsroom coordinator Joseph Kelly – was “out of time” in making statutory complaints about the period before his position with the broadcaster was regularised in 2018.

His complaints against RTÉ under the Organisation of Working Time Act 2005 and the Terms of Employment (Information) Act 1994 were opened today by the tribunal. Mr Kelly is seeking compensation for leave and holiday pay entitlements he claims were denied to him when he worked for RTÉ prior to being put on a contract of employment in 2018.

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When the case opened, RTÉ's solicitor, Arthur Cox partner Seamus Given, said Mr Kelly had failed to set out the exact details of his claims in writing and added: “We believe the matters relate to prior to the commencement of [Mr Kelly’s] employment six years ago, between 2012 and 2018. If I’m right, that goes to jurisdiction. There’s no jurisdiction for the adjudication service of the WRC to hear it at all.”

Mr Kelly’s advocate, Martin McMahon, said: “The position from Arthur Cox is completely contradicted by the position of RTÉ management”. He said there had been an ongoing “commitment” on the part of the broadcaster to “resolve this situation” and to “compensate the people who lost money through bogus self-employment”.

He said RTÉ's lawyers were engaged in a “sharp practice game” and characterised the broadcaster’s stance as: “We’re relying on time; you’re all out” on the basis of “an imaginary line in the sand RTÉ have drawn for themselves.”

The adjudicator said his issue was that he had no written submissions on Mr Kelly’s case. Mr McMahon pointed to an email to the WRC from November 26th in response to correspondence from Arthur Cox questioning the lack of submission. Mr McMahon said Mr Kelly could outline the claims orally.

“Are you prepared to outline what the precise nature of each one of these complaints is, so I am aware of it and the respondent has an opportunity to study that?” the adjudicator asked.

Mr Kelly said: “I can say it.”

Mr Given then said: “Adjudicator, they’ve ignored the letters they got from the WRC; there’s a standard letter.”

Mr McMahon said: “And we put that in, as agreed.”

Mr Given said the complainant side was “treating the process with disdain”

“The line in the sand was drawn by the Oireachtas with the Workplace Relations Act in 2015,” he said, referring to the standard limit of six months to refer an employment rights claim to the tribunal. “My friend is making submissions on a soapbox for the media,” Mr Given added.

“RTÉ has committed very publicly to resolving this situation. Now Joseph has gotten to the point where that’s just not believable,” Mr McMahon said.

Adjudicator John Harraghy said he needed to know what dates Mr Kelly’s claims were in relation to. Mr McMahon said the alleged breaches related to the period during which the Department of Social Protection had determined Mr Kelly to have been misclassified as a contractor rather than an employee. Mr Given said: “The closing date was 2018, adjudicator”.

Mr McMahon said Mr Kelly had “no hand, act nor part” in RTÉ referring the question of his employment status to the Department of Social Protection in 2021.

“It’s very rich for Arthur Cox to come in here and say RTÉ is committed – RTÉ is just running down the clock to time youse all out. That’s sharp practice,” Mr McMahon said.

Mr Given said Mr McMahon had conceded the complaints related to a period between 2012 and 2018. “That closes down the process.”

There was laughter from the complainant side and members of the public attending, and Mr Harraghy asked for “a level of respect” while Mr Given made his submissions.

“Nothing Mr McMahon can say or wish for can change the fact the WRC Act says it’s out of time,” Mr Given said. “That’s not an RTÉ line in the sand, that’s what the law of the land says. My application is that this case should be dismissed for want of jurisdiction,” Mr Given said.

Mr Kelly said: “Mr Given keeps saying I’m talking about a certain amount of time. It was only last year I started to talk to HR. It’s only the last year I started finding this out.”

Mr McMahon said: “The question here is: when did Joseph become aware? RTÉ promised they would recompense Joey; they promised all the workers in this room they would recompense them.”

He said there was a “commitment” from RTÉ and that it was now coming to the WRC stating: “Sorry, we lied about that.”

“Careful with the language,” Mr Harraghy said.

“This is sharp practice,” Mr McMahon said. “You can’t go in as Eimear Cusack did and say we are committed, we’ll follow the rules, and then say: ‘Sorry, that’s all out the window.’ That’s not acceptable,” Mr McMahon said.

Mr Harraghy adjourned the hearing for a short time. On his return, he said the complaint form submitted by Mr Kelly was “significantly lacking in detail” in relation to the complaints.

He gave Mr Kelly until January 31st, 2025 to make a legal submission setting out the alleged contraventions of the acts and any supporting documentation and said a further hearing would be arranged when that was received.

He confirmed to Mr Given that the broadcaster would be at liberty to make responding submissions, and adjourned the case.

The opening of the matter was delayed this morning owing to the number of members of the public who had come to watch, but were unable to find seats in one of the WRC’s smallest hearing rooms.

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