ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00008571

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-00011238-001	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 Regulation 10 of the EC (protection of Employees on Transfer of Undertaking) Regulation 2003 (SI 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 that 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 the Respondent’s company on 26 September 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. He worked an average of 70 hours per week and was paid overtime. He was reimbursed for fuel and meals. He was supplied with a production car and 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 the Claimant 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 Respondent for a period of eight weeks. His letter of appointment clearly stated that this was a contract for service. 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 provision under Schedule 6 of that Act.

I have considered the submissions of both parties. The terms of employment under which the Claimant worked were based in 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 Respondent’s 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