A group of four counsellors at the University of Limerick have failed in a bid to recover sums of more than €50,000 each for holiday pay they say they ought to have been paid over a period of 17 years during, which their employer was treating them as contractors.
The Workplace Relations Commission (WRC) has rejected claims taken under the Organisation of Working Time Act 1997 by Micheal O’Mahony, Brid O’Connell, Carmel McMahon and Marian McMahon against the university.
The four said they were due annual leave, public holidays and pension contributions going back to 2001 after rulings by the Department of Social Protection and Revenue stating that the group were employees – and not contractors as their employer had claimed.
But the Workplace Relations Commission rejected their claims, ruling that it does not have jurisdiction to decide on matters more than a year old.
The tribunal heard that two of the four workers were originally taken on as employees in September 2000 before the university put the four student counsellor positions out to tender in January 2001.
In February 2017, a Department of Social Protection deciding officer found that the four counsellors had been employees of the university since January 1st, 2001.
Revenue made the same finding in October 2018 and the college was made liable for PAYE back to April that year, the tribunal heard.
Contracts were offered to the counsellors in November 2018 with a start date backdated to that September.
Michael O’Connell BL, who appeared for the complainants, said the university “continued to resist full recognition of the counsellors’ employment rights” between 2000 and 2018.
He said his clients had entered into mediation talks at the university’s request and provided records, but received “no offer whatsoever” that might have addressed the matter.
After the talks broke down the claims were sent back for adjudication.
“The employer has been forced to pay very significant amounts of back money in social insurance and tax to the Department of Social Protection and Revenue… yet the people at the centre of this dispute are the only people who have not been paid their rightful due,” Mr O’Connell said.
“Instead, for three years now, the counsellors, who are now close to normal retirement age, have been unable inter alia to secure the proper recognition of their pension rights or their leave entitlements for 18 years,” he added.
IBEC employer relations executive Sinéad Mullins, who represented the university, said it had always acted in “good faith” when it viewed the complainants as being self-employed.
She said the complainants were “seeking an investigation into matters which are beyond both the remit and time limits of the [Organisation of Working Time] Act”.
Ms Mullins added that the adjudicating officer could only examine a claim up to the value of the statutory entitlement to annual leave – an effective cap of 8 per cent of hours worked or four working weeks.
“The adjudicating officer has no jurisdiction to consider any alleged entitlement, contractual or otherwise, beyond that,” she said.
Mr O’Connell, for the complainants, argued that the “construction” of self-employment had “actively prevented” his clients receiving their annual leave or public holiday entitlements going back 17 years.
He said they had the right to rely on the Court of Justice of the European Union ruling in King v Sash windows, which awarded 13 years’ holiday pay to a worker incorrectly classified as being self-employed.
He said European jurisprudence had primacy over national legislation and that the WRC should set aside the statutory time limits.
Ms Mullins added that the counsellors were paid €62 an hour before being regularised as employees and “continue to benefit from this advantageous arrangement”.
If they had been placed on a pay scale their hourly rate would have been €38.20, she submitted.
“This clearly demonstrates that there was built in annual leave provision to cushion periods of unpaid leave,” she added.
Ms Mullins also brought up the Social Protection decision, which noted that “each counsellor was in control of their own diary” and that it was accepted by the complainants that the head of counselling “did not have the right to direct any of the counsellors as to the time of attendance”.
She argued that the 38 per cent pay premium and flexible working arrangements showed the complainants had the facility to take paid leave and that the precedent set in the European courts could not be applied to the case.
Adjudicating officer Peter O’Brien said the Labour Court had made an authoritative ruling against extending time limits in the circumstances.
He noted that the complainants had confirmed they were employees for the 12 months prior to submitting their complaints and that they had received all their entitlements for that period.
Mr O’Brien said he could not look back further than 12 months in respect of holiday pay, and added that he had no jurisdiction under the Organisation of Working Time Act to consider pension contributions.
He ruled the complaints to be not well founded.