WRC finds Fair City photographer was not a freelancer

RTÉ News​

3 days ago

RTÉ has failed to have employment rights claims by the former on-set photographer for Fair City thrown out, after the Workplace Relations Commission (WRC) ruled, for the first time, that a supposed freelancer at the national broadcaster was actually an employee.
The statutory complaints were brought by photographer, Beta Bajgart, who was previously the subject of commentary at the Public Accounts Committee when it emerged the national broadcaster was paying €60,000 per year for promotional images of the Dublin-based soap opera.
Ms Bajgart's case against RTÉ under the Protection of Employees (Fixed-Term Work) Act 2003, the Organisation of Working Time Act 1997, the Terms of Employment (Information) Act 1994 and the Unfair Dismissals Act 1977 will now proceed to a full hearing, following a preliminary ruling today.
It is the first WRC case where the principles of a major Supreme Court ruling in 2023 on the distinction between employees and contractors have been applied to the position of a worker at RTÉ.
The alleged misclassification of media workers as freelance contractors by RTÉ is a major legacy issue at the national broadcaster.
She claims her job as a photographer on the set of RTÉ's flagship soap opera was terminated without notice on 15 December 2023.
The broadcaster's lawyers had argued Ms Bajgart was not an employee, but a freelance contractor - giving the employment tribunal "no jurisdiction" her complaints.
Adjudication officer Catherine Byrne noted that Ms Bajgart suffered "negative commentary" in September 2023 after attention was drawn to Ms Bajgart's role following a hearing of the Oireachtas Public Accounts committee, which had been scrutinising RTÉ's finances.
In the wake of the publicity, Ms Bajgart's solicitors wrote to RTÉ asserting that she had acquired a contract of indefinite duration and was an employee, the tribunal noted.
The broadcaster's director of human resources replied that RTÉ's relationship with the photographer was "not an employment relationship" but that she was "a supplier of services".
Ms Bajgart was first engaged for the work as an independent contractor for a year starting in June 2011 at €750 a week.
There were repeated renewals of the contract and Ms Bajgart won tender competitions in 2017 and 2019, with the rate for the job rising to €980 a week over that period, the tribunal noted.
However, Ms Bajgart did not apply when the work was put out to tender again in September 2023, and ultimately ceased working on the Fair City set on 15 December 2023, when the tender process was readvertised, the adjudicator noted.
Ms Bajgart gave evidence that she was interviewed for the job in 2011 and "got the contract", with "no discussion about the legal implications".
She explained that she set the rate for the job based on her previous work for another production, Off the Rails.
Addressing a gap in her contracts between 14 October 2018 and 21 January 2019, Ms Bajgart said she "simply continued to work" and got paid.
Her barrister, Michael O'Doherty BL, who appeared instructed by Conor McCrave of Setanta Solicitors, asked if she had "consented to doing the job as an independent contractor.
Ms Bajgart replied: "I wanted the job," and added that it was "never offered" to her as a position of employment.
Under cross-examination from RTÉ's solicitor, Louise O'Byrne of Arthur Cox, asked Ms Bajgart whether she had done other work while engaged for Fair City.
Ms Bajgart said she ran her freelance business around the Fair City shot list and that it was difficult to look for clients because she never knew when she was due on set.
Ms O'Byrne also referred to a letter sent by the complainant to the Irish Times and the Irish Independent in September 2023 following remarks by Fine Gael senator Micheál Carrigy about Ms Bajgart's, in which the complainant had stated: "The photographer on RTÉ's Fair City is an independent contractor."
Ms O'Byrne argued this showed the claimant "did not consider herself as an employee" of RTÉ.
Mr O'Doherty said she had described herself as an independent contractor "because she did not want to upset her employer and potentially lose her job by publicly describing herself as an employee".
Adjudication officer Catherine Byrne wrote that the "day-to-day reality" of Ms Bajgart's working relationship with RTÉ was "not consistent with how she was described in her contract as 'a supplier' and 'not an employee'".
Ms Byrne noted that Ms Bajgart had been working 20 hours a week, part-time, for 12 years on "a series of fixed-term contracts" in a role which "contributes to the promotion and success" of Fair City.
The worker had had a desk on set, "no discretion" about her level of attendance there, and could only work elsewhere three or four hours a week, and performed the work personally 95% of the time, Ms Byrne said.
There were limits to Ms Bajgart's "artistic independence" and her freedom to alter her way of working in a bid to increase her earnings, with a fixed weekly rate being paid, Ms Byrne added.
Ms Byrne also noted that during a period between October 2018 and January 2019, when there was no contract in place, Ms Bajgart "continued to turn up for work" and got her normal weekly rate "without any dispute".
"This continuity of employment, in the absence of a contract, is indicative of a relationship of interdependence and trust, and not that of a commercial agreement," Ms Byrne wrote.
"The authors of the agreements… may have genuinely believed that the working relationship with [Ms Bajgart] was that of an independent contractor, at least in the early years," she wrote.
"However, it seems to me that the sustained nature of her job and the sole reliance by the respondent on the complainant to do the work, means that the legal basis of the agreement evolved from a supplier's agreement to that of an employee," she added.
Ms Byrne wrote that her investigation of Ms Bajgart's status was clouded by the fact the photographer appeared to have "acquiesced" to being classified as self-employed for years - and even described herself as an independent contractor in open letters to two newspapers in 2023.
"This acquiescence has no bearing on my conclusion that her relationship with the respondent was that of an employee," the adjudicator wrote.