ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008566
Parties:
| Complainant | Respondent |
Anonymised Parties | Unit Driver | Film Company |
Representatives | David Kearney GMB Trade Union | Nora Cashe, Peninsula Group Limited |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) | CA-00011231-001 | 10/05/2017 |
Date of Adjudication Hearing: 20/09/2017
Workplace Relations Commission Adjudication Officer: John Tierney
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or SI No. 131 of 2003] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The Claimant is claiming a transfer of undertaking took place in regard to his employment and is seeking to uphold his right to transfer under the TUPE Regulations. |
Summary of Complainant’s Case:
The Claimant was employed as a unit driver by a Film Company on 26 September 2016 and finished on 26 November 2016. On 7 October 2016, the Claimant received an email from the Respondent setting out the agreement in writing for unit drivers. This set out the terms and conditions. He works an average of 70 hours per week and he was paid overtime. He was also reimbursed for fuel and meals. He was supplied with a production car. He received holiday pay. The Claimant was an employee of the Respondent and therefore entitled to the protection of the TUPE Regulations. When the Respondent commenced production of another film with a different company he was entitled to transfer to it as his previous employment was with the respondent other company. This did not happen. |
Summary of Respondent’s Case:
The Claimant was employed on a self-employed basis with the Respondents for a period of eight weeks. His letter of appointment clearly stated that this was a contract for services. The Claimant submitted invoices for the work he did and was responsible for his own tax affairs. The second company to which he refers to; the owners are completely different to the one that employed him. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have considered the submissions of the parties. The terms of employment under which the Claimant worked were based on an agreement between the film industry and SIPTU. This agreement provides for payment of allowances and holidays which the Claimant received. The fact that the Claimant submitted invoices and was responsible for his own tax affairs leads me to accept the Respondents contention that the Claimant was self-employed. Therefore, I do not find the claim well founded and it fails. |
Dated: 11th July 2018
Workplace Relations Commission Adjudication Officer: John Tierney