EQUALITY OFFICER DECISION NO: DEC-E/2010/228
PARTIES
ADIGUN
(REPRESENTED BY FEMI DANIYAN BL INSTRUCTED BY GM SOLICITORS)
AND
THE ABBEY THEATRE (AMHARCLANN NA MAINISTREACH)
(REPRESENTED BY ARTHUR COX- SOLICITORS)
File No: EE/2008/344
Date of issue:17 November, 2010
Headnotes: Employment Equality Acts, 1998- 2007 - sections 2, 6, 8 and 74 - race- discriminatory treatment - conditions of employment- victimisation - whether an employee - locus standi to purse a complaint
1. DISPUTE
This dispute involves a claim by Mr Bisi Adigun that he was (i) discriminated against by The Abbey Theatre (Amharclann na Mainistreach) - hereafter called "the respondent" - on grounds of race, in terms of section 6(2) of the Employment Equality Acts 1998 - 2007 and contrary to section 8 of those Acts in relation to access of employment, (ii) discriminated against by the respondent on grounds of race, in terms of section 6(2) of the Employment Equality Acts 1998 - 2007 and contrary to section 8 of those Acts in relation to conditions of employment and (iii) victimised by the respondent in terms of section 74(2) of the Employment Equality Acts, 1998 - 2007.
2. BACKGROUND
2.1 The complainant is Artistic Director of a company called Arambe Productions. In May, 2007 the complainant signed an Agreement on behalf of Arambe Productions with the respondent to grant it (the respondent) the licence and rights to produce and present a play entitled "The Playboy of the Western World". He contends that this Agreement amounts to a contract of employment between him and the respondent and that the respondent subsequently (i) discriminated against him on grounds of race in relation his conditions of employment and (ii) victimised him, contrary to the Acts. The complainant also contends that the respondent discriminated against him on grounds of race in respect of access to employment in December, 2008. The respondent rejects the complainant's assertions in their entirety and not withstanding this argument submits that any relationship which existed between it and the complainant was not one covered by a contract of employment as defined under the Employment Equality Acts, 1998 - 2007. It further submits that this matter should be considered as a preliminary issue in accordance with section 79(3)(A) of the Acts and after giving the submission consideration I decided to proceed on that basis.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 - 2007 to the Equality Tribunal on 29 May, 2008. In accordance with his powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on 8 July, 2010 - the date the complaint was delegated to me. Submissions were filed and exchanged and a Hearing on the complaint took place on 10 September, 2010.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that he is the Artistic Director (and is a member of the Board of Directors) of Arambe Productions - a limited company by guarantee without shares. He adds that in February, 2006 Arambe Productions commissioned him and Mr. D to write a new version of the well known J.M. Synge play, "The Playboy of the Western World" (hereafter called "the play"). This process was governed by a written Memorandum of Agreement between the three parties involved. The complainant further states that in May, 2007 the respondent entered into an arrangement with Arambe Productions which granted the respondent the sole and exclusive licence to produce and present the play in accordance with the terms of that Agreement. The complainant states that he signed that Agreement on behalf of Arambe Productions and he submits that this implies a contract of employment between him and the respondent. In support of this assertion he states that the Director of the Abbey Theatre advised him at the outset that it was producing the play - the venture was not a co-production - and it is submitted on the complainant's behalf that if he was not a co-producer he was therefore an employee. He points to specific clauses of the Agreement between Arambe Productions and the Abbey Theatre which, he asserts, create an employment relationship between him and the respondent - in particular Clauses 4, 5, 8 and 16. The complainant further states that he performed a range of tasks for the respondent - particularly those associated with media coverage of the play, was involved in aspects of cast selection and attended the vast majority of rehearsals. It is submitted on his behalf that these duties comprise elements which demonstrate a degree of control over him by the respondent. The complainant seeks to rely on the Supreme Court judgement in Henry Denny & Sons t/a Kerry Foods v The Minister for Social Welfare , the judgement of Carroll J In Re: Sunday Tribune and the decision of the Labour Court in The Western People Newspaper v A Worker in respect of this aspect of his complaint.
3.2 The complainant submits that the failure of the respondent to involve him in a second production of the play in December, 2008 constitutes less favourable treatment on him on grounds of race as regards access to employment. He further submits that a series of alleged instances of victimisation of him (details supplied) arose from February, 2008 - in particular when the respondent only contacted Mr. D to discuss the second production of the play in December, 2008.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertions in their entirety. Notwithstanding this contention it states that the complainant was never, at any time, an employee and therefore he does not have the locus standi to maintain his complaint before the Tribunal. The respondent states that it entered into a licence agreement with Arambe Productions on 18 May, 2007 which provided the respondent with the sole and exclusive rights to produce and present the play, which had been co-written by the complainant and Mr. D. It adds that this Agreement was signed by the complainant on behalf of Arambe Productions in his capacity as a Director of that company. It submits that it was not a contract to engage the complainant's services on a personal basis but was merely a contract to regulate the production and presentation of the play by the respondent in accordance with the clauses contained therein. It further submits that any remedy which the complainant might have in terms of any dispute between him and the respondent lies with the remedies available under contract law and not employment equality law.
4.2 The respondent states that the Agreement with Arambe Productions gave rise to the complainant's presence at various meetings and rehearsals connected with the play and that he also undertook some media based interviews. It submits however that these are normal activities which arise between the Licensor and Licensee of plays which it produces. It rejects the assertion that any clause in the Agreement, but in particular those clauses referred to by the complainant, create an employer/employee relationship between the them. It states that it had no control over the complainant and that any work carried out by him in respect of the production of the play was carried out solely in his capacity as Artistic Director of Arambe Productions and/or co-author of the play. It adds that whilst the play was not a co-production of the respondent and Arambe Productions the approach it (the respondent) adopted was a collaborative one with Arambe Productions and this approach was channelled through the complainant - who it viewed as Arambe Production's agent in the matter - in order to maximise the economic return on the production of the play for all concerned.
4.3 The respondent further submits that the complainant was never integrated into the business and was merely an accessory to it, as are any authors of plays which it produces. It adds that the complainant received no wage from the respondent - any income he received from the production of the play was paid to him by Arambe Productions which received royalties from the Abbey Theatre in accordance with the terms of the Agreement of May, 2007. The respondent states that the complainant had no set hours of work, nor were there a minimum number of hours a week that he was required to work. It adds that he had no entitlement to overtime, holidays or any other benefits indicative of a contract of employment and that he dealt with his own tax affairs - it never paid and tax, social insurance or pensions contributions on his behalf. The respondent further states that it had no control over any other production work which the complainant (and indeed Arambe Productions) wished to undertake at that time. In conclusion on this point the respondent states that the complainant entered into an arm's length commercial contract on behalf of a company of which he is a Director in respect of the production of the play, that he expressly signed the Agreement "for and on behalf of Arambe Productions" and that the Agreement conferred no employment rights on the complainant or Arambe Productions.
4.4 The respondent rejects the complainant's assertion that he was discriminated against him as regards access to employment in December, 2008 It states that there was no employment to be obtained and no position was on offer at that time and adds that what happened was merely a revival of the production of the play by the respondent, which it was entitled to do under Clause 12 of the Agreement of 18 May, 2007. The respondent further rejects, in their entirety, any alleged incidents of victimisation of the complainant contrary to the Acts.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the complainant was an employee of the respondent, in terms of section 2 of the Employment Equality Acts, 1998 - 2007 and therefore has the locus standi to maintain his complaint before this Tribunal. In reaching my decision I have taken into consideration all of the submissions, both written and oral, submitted to the Tribunal as well as evidence advanced at the Hearing.
5.2 Section 2 of the Employment Equality Acts, 1998 - 2007 defines employee as follows - ".... a person who has entered into or works under (or where the employment has ceased, entered into or worked under) a contract of employment.......". The same section defines contract of employment as follows -
(a) a contract of service or apprenticeship, or
(b) any other contract whereby (i) an individual agrees with another person personally to execute any work or service for that person...........".
The definition of employee therefore covers those persons employed on both a contract of service and a contract for services.
5.3 In the course of the Hearing the complainant confirmed that the only document which he signed in respect of this matter was the Agreement dated 18 May, 2007. A copy of this document was furnished to me for the purposes of my investigation and whilst it is established law that such a document is not absolutely determinative of the relationship between parties and any examination of such a relationship should have regard to all the circumstances of the prevailing situation , it is nonetheless a very useful tool in any such deliberations. I have carefully examined the contents of this Agreement, particularly those Clauses referred to by the complainant and I can find no evidence that they create an employee/employer relationship between the complainant and the respondent. Clause 4 states that the respondent (as Licensee) shall provide the play with a cast, director and designer "in consultation" with the Licensor (which is clearly stated as Arambe Productions). Clause 5 entitles the authors to attend all rehearsals of the play. Clause 8 refers to the arrangements for payment to the Licensor of the appropriate amount of box office receipts and Clause 16 states that the Agreement "shall not be deemed to constitute a partnership between the parties". None of the Clauses in the Agreement could in any way be interpreted as creating mutuality of obligation between the complainant and the respondent, a concept which has often been referred to as "the irreducible minimum requirement which must exist before a contract of employment can exist" . In addition, in The Minister for Agriculture & Food v Barry & Others Edwards J held "that if such mutuality is not present then there is no contract at all or whatever contract there is must be a contract for services or something else".
5.4 The Preamble to the Agreement of 18 May, 2007 states as follows -
"This Agreement is made on the 18th May, 2007
BETWEEN Arambe Productions, 2 Moorefield Cottages, Roebuck Road, Clonskeagh,
Dublin 14 (hereinafter called the 'Licensor') of the one part
and
The Abbey Theatre (Amharclann na Mainistreach, 26 Lower Abbey Street, Dublin 1
Ireland (hereinafter called the 'Licensee') of the other part
CONCERNING a play at present entitled
The Playboy of the Western World
A new version
BY
(names of the authors supplied)"
This Agreement is signed by the complainant "for and on behalf of Arambe Productions" and his signature is witnessed. In the course of the Hearing the complainant confirmed that his clear understanding of the arrangement at that time was that the Agreement set out the terms between Arambe Productions and the Abbey Theatre for the presentation and production of the play by the Abbey Theatre. It is evident therefore that whatever the intent of the parties at the time it was never their intention to enter into an arrangement which gave rise to a contract of employment existing between them, or indeed the complainant and the respondent. In the circumstances, I cannot therefore accept the complainant's assertion that by signing the Agreement he was creating an employee/employer relationship between him personally and the respondent. In my view what he was doing was acting as an agent for Arambe Productions and had been authorised by the Board of Directors of that company to enter into a commercial contractual relationship with the Abbey Theatre which enabled the Abbey Theatre to produce the play, which Arambe had previously commissioned the complainant and Mr. D to write. In addition, I am satisfied that any arrangement or understanding which might have existed between the complainant and the respondent did not contain any of the characteristics which have been found previously (by the Superior Courts) to be indicative of a contract of services existing - standard wage, control over the place and hours of work, revenue and social insurance liabilities etc.
5.5 In light of my comments in the preceding paragraphs I find that the complaint and the respondent did not enter into an arrangement which could be considered to constitute a contract of employment in terms of section 2 of the Employment Equality Acts, 1998 - 2007. It follows therefore that the complainant was never an employee of the respondent in terms of the same section of the Acts.
5.6 It is established law that the preferred course is to deal with all aspects of a complaint in a single Decision . I am also mindful of the judgment of Carroll J in Aer Lingus v The Labour Court when she held that " it is not conducive to the speedy resolution of disputes if there has to be a multitude of separate decisions each of which is open to appeal." whilst referring to the dictum of Lord Pearson in Pearlberg v Varty "that fairness does not necessarily require a plurality of hearing or representations and counter-representations". Section 79(3)(A) of the Employment Equality Acts, 1998 - 2007 provides that if, following the referral of a complaint to the Tribunal under section 77 of those Acts, a question arises relating to the entitlement of any party to bring or contest proceedings under that section, the Director may direct that the question may be investigated as a preliminary issue. The section also provides that these questions can include "whether the complainant is an employee" and "any other related question of law or fact". In my view the complainant's access to employment and victimisation claims fall within this latter category and I therefore propose to deal with those remaining aspects of the complainant's case in this Decision. Taking the access to employment issue first, the complainant contends that the failure of the respondent to involve him in the second production of the play in December, 2008 constitute unlawful discrimination of him. I cannot accept that proposition. Clause 12 of the Agreement between Arambe Productions and the respondent entitles the respondent to produce and present the play in Ireland for a period of five years from the date of the last performance of its premier run, subject to certain conditions being met. These conditions do not include the offer of employment to the complainant or any other member of Arambe Productions. It appears that in producing the play in December, 2008 the respondent was merely exercising this entitlement. I have found in paragraph 5.5 above that the Agreement between Arambe Productions and the respondent does not constitute a contract of employment for the purposes of the Acts. I am satisfied that there was no employment available with the respondent or that there was any offer of employment from the respondent at that time and consequently I find that the respondent did not deny the complainant access to employment contrary to the Acts in December, 2008.
5.7 I shall now turn to the complainant's contention that he was victimised contrary to the Acts. Section 74(2) of the Employment Equality Acts, 1998 - 2007 defines victimisation as "the dismissal or other adverse treatment of an employee by his or her employer... as a reaction to..." seven protected actions as defined at paragraphs (a) - (g) of that section. It is absolutely clear from the wording of this provision that victimisation can only occur under the Acts where an employee/employer relationship exists between the parties. I have found at paragraph 5.5 above that no such relationship existed between the complainant and the respondent and it follows therefore that he has no locus standi to maintain this aspect of his complaint.
6. DECISION OF THE EQUALITY OFFICER.
I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that -
(i) the complainant was never an employee of the respondent in terms of section 2 of the Employment Equality Acts, 1998 - 2007 and he therefore does not have the locus standi to maintain his complaint before this Tribunal in respect of the alleged discriminatory treatment of him on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2007 and contrary to section 8 of those Acts as regards his conditions of employment.
(ii) the complainant was never an employee of the respondent in terms of section 2 of the Employment Equality Acts, 1998 - 2007 and he therefore does not have the locus standi to maintain his complaint before this Tribunal in respect of the alleged victimisation of him contrary to section 74(2) of the Acts.
(iii) there was no employment available or on offer in December, 2008 when the respondent exercised its entitlements under Clause 12 of the Agreement of 18 May, 2007 between it and Arambe Productions and it did not therefore deny the complainant access to employment contrary to the Acts, or at all
and the complaint's case fails in its entirety.
_______________________________
Vivian Jackson
Equality Officer
17 November, 2010