High Court of Ireland Decisions

1. The Plaintiff is a Radio Presenter/Disc Jockey. He was first employed by the Defendant under the terms of a contract dated 8th April, 1997 expressed to be for 3 months commencing on 10th march, 1997. In fact the start-up date of the station was around 17th march, 1997.

2. The terms of that contract, headed "Agreement for Services", recited:-

3. A. "Mr. Dower is a self-employed free lance Radio Producer and Programme Presenter and has certain knowledge, skills and abilities which Radio Ireland is wishes to avail of.

4. B. Mr. Dower has agreed to provide services to Radio Ireland as a Producer and Presenter on the following terms and conditions."

5. Clause 1 provides:-

6. Radio Ireland hereby engages Mr. Dower to provide to Radio Ireland as a Producer and Presenter of two weekly radio programmes to be broadcast at 6.00 to 8.00 pm each Saturday and Sunday on the terms and subject to the conditions hereinafter contained."

7. Clause 2 provides:-

8. This agreement shall commence on 10th March, 1997 and shall continue for a fixed period of 3 months unless terminated earlier on notice by weather party in accordance with Clause 9 hereof and provided always that this agreement may be terminated summarily f Mr. Dower is in breach under the provisions of Clause 10 hereof."

9. Clause 3 provides:-

10. Mr. Dower will provide his service for such hours as are reasonably necessary enable him properly and diligently to carry out the services referred to in Clause 1 hereof."

11. Clause 6 provides:-

12. Radio Ireland will pay to Mr. Dower a fee of £80 per programme for his services under this agreement which will be charged by Mr. Dower weekly in arrears such fee to be exclusive of value added tax (if applicable). The weekly fee will be paid on presentation of invoice by Mr. Dower."

13. Clause 8 provides:-

14. Breaks from weekly schedule may be as agreed between Mr. Dower and the programme Controller. In the event of Mr. Dower being unable to provide his services hereunder due to illness he will notify the Programme Controller immediately and in any event no later than 2 hours prior to commencement of his programme."

15. Clause 9 provides:-

16. This agreement may be terminated by either party giving to the other not less an one weeks prior notice in writing."

17. Clause 11 (a) and (b) provides:-

18. Clause 17 provides:-

19. This agreement shall be governed by Irish Law and all disputes which arise between the parties in connection with this agreement by the parties or in

20. The Plaintiff continued working for the Defendant until, following a meeting on 14th June, 2000, he was given three months written notice on 14th June, 2000 terminating his working arrangement. he then issued a plenary summons on 12th July, 2000 claiming he was still employed by the Defendant and brought a motion for injunctive relief requiring the Defendant to continue to pay his remuneration. The Defendant brought an application to stay the proceedings under Section 5 of the Arbitration Act, 1980 so that the matter could be submitted to arbitration. It claimed that the provisions of Clause 17 applied to the contract between the Plaintiff and the Defendant.

21. The two matters came on for hearing on 26th July, 2000 when the application to stay was taken first and heard on Affidavit. Since there were disputed matters of fact in the Affidavits the matter was adjourned for oral evidence to 5th September, 2000.

22. There are two issues arising:-

23. The Plaintiff claims that although he was initially employed as an independent contractor on a fixed month contract, the renewal of this contract from time to time showed he was an employee a the latest when the Defendant agree to pay him £30,000 per year. he claims he was always subject to the control and direction of the Defendant.

24. The cases in relation to the difference between contracts for services and contracts of service have been cited to me. The perspective in this case is somewhat different in that the Plaintiff was clearly employed on a contract for services on 1997 and the question is whether the status of his working arrangement changed.

25. The facts are that he started doing two weekends, 6.00 to 8.00pm on Saturday and Sundays at £20 per hour, s total of 4 hours. in June, 1997 he was asked to do a lunchtime slot during the week plus 4 hours at weekends, a total of 14 hours for which he was paid £560 per week. This was later reduced to £480 per week when Saturday was dropped. In August, 1997 he was asked to do 10.00am to 1.30pm weekly with two hours on Saturday and was paid £650 per week. In January, 19987 he was offered a position as a Swingjock (i.e. a person who slots into vacant slots or covers for sickness/holidays of other Presenters) as well as a Saturday morning breakfast show, 6.00am to 9.00am and Sunday afternoon, 1.00 to 3.00 pm. For this he was paid £500 per week.

26. In September, 1998n he said he was offered by Tome Hardy, Assistant Programme Manager, a position as Presenter of the breakfast show, 5.00 to 7.00am, in addition to providing relief cover for Ian Dempsey on his breakfast show, 7.00 to 10.00am. For this he was paid £30,000 per annum, invoiced at £577 per week from the 2nd of October, 1998 to the present time.

27. Tom Hardy, who negotiated with the Plaintiff, recalled the meeting and said it was essentially about a change in hours. There was no change in his contractural position. He said his collection was that Tom Street, teh CEO agreed the fee.

28. The Plaintiff's evidence was that since he was going to fill in for 2 months, he asked Tom Hardy for £650 per week which was the same as before and Mr. Hardy said no and offered £30,000 per annum, equivalent to £577 per week. The Plaintiff also said in evidence that if h voiced up a radio commercial he got paid extra to do it.

29. It is my view that there was no agreement to pay a salary of £30,000 per annum constituting employment but rather agreement to pay a fee calculated on £30,000 per annum.

30. The Plaintiff is registered for VAT with the Revenue Commissioners as a sole trader. All his remuneration has been paid on foot of invoices for 4 weeks at a time with VAT at 21%. Following the agreement for £30,000 per annum he presented his invoices every 4 weeks showing 4 weeks at £577.

31. The Plaintiff claimed he was entitled to 35 days holiday and sick pay. The only onvoice submitted claiming holiday pay was submitted after the dispute between the parties arose. Mr. O'Reilly, current CEO of Defendant since June 1999, said nobody in the organisation is entitled to 35 days holiday.

32. Mr. O'Reilly said that the position of a Radio Presenter is by its nature precarious. It is very much personality and style driven. The Defendant pays the Presenters to bring in an audience and the rewards are large. A successful Presenter who is free lance can maximise earnings by outside work. Mr. O'Reilly said he put the life span average at about 3 to 4 years but there were exceptions such as Gay Byrne. Mr. O'Reilly was with RTE 19 years and they have the same practice there. I his Affidavit he stated the agreement with the Plaintiff was terminated not because of any wrongdoing or default but because the station was unable to find a niche which suited the Plaintiff's skill and personality as a Presenter. He also said that anyone taken on as an employee would have PRSI and PAYE deducted as well as being put on the pension plan. He said the Plaintiff for the breakfast show from 5.00 to 7.00am came in at 4.30 am and was gone after the show by 8.00am. He had no desk and no telephone extension. he said the procedure for payment is to agree how much and divide it up and pay it. The normal course of business is done on a monthly basis. The Plaintiff was [paid a fixed rate of £30,000 per annum for 4 weekly invoices plus VAT over 52 week since October, 1998.

33. I accept Mr. O'Reilly's evidence. There is nothing in those facts which would indicate any change in the employment status of the Plaintiff.

34. The matters which the Plaintiff points to as indicating that his status has changed to that of an employee under a contract of service were varied. I have already said the agreement to pay £30,000 per annum to be invoiced per week was not the salary of an employee but an agreed fee for a free lancer presenter. The change in his hours and change in remuneration from time to time did not change his status. There was never a re-negotiation of the working relationship between the Plaintiff and the Defendant. There was one period of 6 to 8 weeks around September, 1997 when he helped Bryan Adams (Head of Music) on a Thursday for 6 to 7 hours and gave 8a hand with schedules. The Plaintiff agreed there was not an additional 20 to 25 hours per week as set out in his Affidavit. There were also weekly play list meetings lasting one to one and a half hours to decided what new songs would be added to the station list to which all Presenters were invited.

35. The 6 weeks period of extra work for which he did not get paid not alter the status of his employment. Apart from that 6 week period his duties over the few years as a Radio Presenter remained the same. It was a case of being offered different slots which he took. He was not told what to say or how to say it. He performed as a Presenter.

36. The Plaintiff also said that he spoke to Jeff Holland, one of the London based

37. In a similar vein it is the claim that when the Plaintiff was called for jury duty in October, 1998 the music programme manager wrote to the County Registrar referring to him as an employee and asking that he be excused from duty "as a member of our on-air staff'. This claim has no weight at all. Neither does the claim that he attends staff parties. As to attendances at staff meetings, Mr O'Reilly says that since he became CEO there have been no staff meetings.

38. I accept the Plaintiffs assurances that he does not work for his girlfriend's PR company and that the assistance that he gives is minimal and he is not paid for it.

39. Taking into consideration the cases cited (In Re: Sunday Tribune [1984] IR 505, Denny -v-Minister for Social Welfare [1998] 1 IR 34 and Tierney -v- An Post [1999]

40. E.L.R. 293), I do not accept that any of the facts add up to a change in the Plaintiff's status as a independent contractor from the time he was first taken on by the Defendant in March, 1997.

41. The second issue is whether, if he continued as an independent contractor, Clause 17 continued to apply to the working arrangement between the Plaintiff and the

42. Defendant as being a dispute in connection with the subject matter of the agreement. It was submitted on behalf of the Plaintiff that even if the Plaintiff continued as an independent contractor, the contract did not continue but was re-negotiated. It was submitted that there was no written arbitration agreement and therefore it fell outside the definition section of the Arbitration Act, 1954.

43. However, there is a written arbitration clause in the contract of 8th April, 1997 and the question is whether that clause as well as other clauses in the agreement continue to

44. In my view there is no valid reason why the parties did not continue to be bound by

45. Accordingly, I consider the contract between the parties to be a contract for services which continued to be subject, on a roll-over basis, to implied conditions similar to those contained in the original contract, including the arbitration clause concerning disputes in connection with the subject matter of the agreement. It is therefore appropriate to stay these proceedings so that the matter can be referred to arbitration.