Complainant

Respondent

Anonymised Parties

{Supervising Stagehand}

{A Film Business}

Representatives

Liz Murray Irish Film Workers Association

Ciaran Loughran IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00027474-001

03/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00027474-002

03/04/2019

The Complainant has been employed with the Respondent from 1st June 2010 to 1st April 2019 as a Supervising Stagehand.

CA-00027474-001

The Complainant says his employer refused him a job on an incoming film. He has worked with the employer on numerous productions since 2010. There were no issues with his employment. The employer refused and said he hired a construction manager who was bringing in his own personnel. This is incorrect as the construction manager is a sole trader and does not have staff.

The Complainant says he has been summarily dismissed without fair procedures or natural justice and without a right of appeal.

It is submitted on behalf of the Complainant that he was employed by the Respondent at all material times. He was first employed in 2004 on a fixed-term contract. The issuing of fixed-term contracts is custom and practice in the film industry in collective agreements.

The Complainant says the revenue commissioners require a producer company to set up and enter into a contract with a qualifying company in relation to the production of each qualifying film. This is in order to qualify for corporation tax relief S481 under the Taxes Consolidation Act 1997, Statutory Instrument 357, S14/2015 as amended by SI1119/2019.

The Complainant says the Respondent has previously defended a claim by workers employed on another production in relation to a breach of S21 of the Organisation of Working Time Act 1997. The Complainant also represented film workers in relation to A Trainee v A Media Company and Gemma Louise Coughlan v Fastnet Films where the Respondents sought to deny liability by claiming the DAC company was the employer. A recommendation and determination issued in favour of the workers and the principle of the producer company being the employer has been well established.

If the Special Purpose Vehicle Company was the employer of the Complainant then S39 of the Organisation of Working Time Act 1997 provides the following:

“A decision by whatever name called of a relevant authority under this act or an enactment referred to in the Table to this subsection that does not state correctly the name of the employer concerned or any other material particular may, on application being made in that behalf to the authority by any party concerned, be amended by the authority so as to state correctly the name of the employer concerned of the other material particular”.

The Unfair Dismissals Act 1977-1993 is specifically referred to in the Table to the Organisation of Working Time Act 1997.

Irrespective of the contention by the Respondent that the Special Purpose Vehicle or DAC is the deemed employer and not the producer company the work undertaken by the DAC is work for the Respondent. The work undertaken by the Complainant is also work for the Respondent who are the ultimate beneficiaries. The Complainant relies on S13 of the Unfair Dismissals Amendment Act 1993 which provides that staff placed in a business by a third party usually but not always an employment agency are deemed to be staff of the business in which they are placed for the Unfair Dismissals Acts.

The Complainant submits he is not nor has he ever been an independent contractor. The Revenue Guidance notes contains an appendix which sets out the occupation and qualifying conditions which must be met for individuals to be considered self-employed in the industry. Revenue do not permit the Complainant’s grade to be deemed self-employed. The Complainant’s first engagement was in 2004 on a PAYE basis. The Complainant claims that his contract transmuted to a contract of indefinite duration in 2007 when he was in his fourth year as there were no objective grounds for renewal of the contract and the failure to offer a contract of indefinite duration.

The Complainant can demonstrate while engaged as a Stagehand on film production he meets the definition of employee. The Complainant is at the grade of Supervising Stagehand. He has worked in film for 27 years for the Respondent and other major film producers.

Film production is undertaken in Ireland on a project basis and workers are subject to lay off by producer companies. This is heavily subsidised by public funds. Text 2013/C of the European Union provides the funding is to generate activity and …"a development of a permanent pool of human skills and experience”. The Respondent is a soundly based production undertaking and the Complainant is on that panel and has been engaged from that panel for a number of years.

It is submitted that production workers are free to take up other work with other producers, however given they must be available to service film production they are limited to casual work outside the industry in hiatus periods. The Complainant obtained a Public Service Vehicle Licence for a taxi around 2010 for the hiatus periods. He registered with Revenue for Income Tax self- assessment.

The Complainant says he is under the control of another person and is directed by a line manager. He supplies labour only and receives a fixed weekly wage. He cannot subcontract the work, does not supply material but he has a van. If directed he will use this for the production and will claim an additional set payment (set out in the 1991 collective agreement). He does not assume any personal or financial risk in carrying out the work. He does not have the opportunity to profit from the business. He receives payments of travel subsistence and overtime, holidays public holiday and the collective agreement forms part of his terms and conditions of employment. He relies on Henry Denny & Sons (Ireland ) Ltd t/a Kerry foods) v Minister for Social Welfare [1998] ELR 36.

The Respondent says they can provide co-producers including crewing and are the employer of the crew.

The Respondent informed the Complainant that he did not sign the collective agreement on 1st April 2019 .

The first schedule of the Minimum Notice & Terms of Employment Act 1973-2001 applies for the purposes of ascertaining the period of service of an employee and whether the service has been continuous. It provides at S4 3 that a lay off shall not amount to the termination by an employer of his employee’s service. The Complainant relies on An Post v McNeill [1998] ELR 19 which held that a period of lay off is not subject to a temporal limit. This was upheld by the Labour Court in Beary v The Revenue Commissioners.

CA-00027474-002

The Complainant seeks his statutory minimum notice or payment in lieu.

CA-00027474-001 & CA-00027474-002

The Respondent denies the Complainant has ever been employed by the Respondent. The Complainant has named a legal entity that does not exist. S41 (16) of the Workplace Relations Act 2015 enables an Adjudication Officer to correct any mistake of an administrative (omission) or clerical nature in a decision. The Respondent says this is not a mistake and the Complainant has named a legal entity that does not exist. Relying on Starrus Eco Holdings t/a Greenstar Wastepal v Calvin Partner the Respondent says the wrong respondent has been impleaded and there is no jurisdiction to hear that claim.

It is a requirement under S481 tax relief that a special purpose vehicle or Designated Activity Company be established for each individual production, which is then dissolved after auditing and submitting a compliance report to the Revenue Commissioners. The Complainant was engaged by a company who were working on a particular series which concluded on 29th April 2016. This entity was dissolved on 22nd August 2018.

The Complainant was engaged as an independent contractor on a professional services contract. He is not an employee and the Unfair Dismissals Acts 1977-2015 do not apply. He was issued with a contract as independent contractor on a Schedule D crew contract which was signed by him on 29th April 2016.

The Complainant invoiced on a weekly basis as a Construction Buyer for driving/transport services. He supplied his own vehicle. The final invoice submitted was dated 9th May 2016. The Revenue Guidance note provides the occupation may be considered to be self-employment. The Respondent relies on ADJ-00008566 which relates to a Driver in the film industry. The Adjudication Officer in that case found that the fact the Complainant submitted invoices and was responsible for his own tax affairs led the Adjudication Officer to accept the Complainant was self-employed.    

Without prejudice to the preliminary matters, the Respondent says there is no “dismissal” within the meaning of the Unfair Dismissal Acts as the Complainant neither resigned, nor was he dismissed or was he engaged on a fixed-term basis. The Complainant has failed to present his complaint within six months of the date of the alleged dismissal.

The claim is manifestly out of time. The Complainant was not in employment with the Respondent on 1st April 2019 the date of dismissal. The Complainant’s last engagement as independent contractor was with a company which has shared Directors with those of the Respondent. His contract for services with the company terminated on 29th April 2016. Neither of the 2 companies who employed him as an independent contractor are party to the complaint.

The Complainant says that Respondent refused him a job at an upcoming film, this indicates the Complainant recognises he was not an employee but rather an applicant. The Respondent seeks a decision on the preliminary matter first before deciding on the complaint under the Unfair Dismissals Acts 1977-2015. There is jurisprudence which suggests that the Adjudication Officer is precluded by law from holding a substantive hearing until a decision is reached on the preliminary matter.

In Sheehy v Most Reverend James Moriarty the Tribunal held …" the Tribunal was set up under statute by the Oireachtas and did not have the authority based on constitutional or natural law and justice principles to conduct a hearing” where “ the claims were not instituted within the time periods set out in the legislation”.

The Respondent relies on an Employee v Employer UD969/2009 the Employment Appeals Tribunal was asked to make a decision on a preliminary matter first before moving to hear the substantive case. Given the significant preliminary points raised, the Tribunal moved to hear the preliminary matter first and reach a decision on same.

In Bus Eireann v SIPTU PTD8/2004 the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case “where it could lead to considerable savings in both time and expense” and where the point was “a question of pure law where no evidence was needed and where no further information was required”.

It is submitted the Adjudication Officer does not have the requisite jurisdiction to hear this claim as it is clearly out of time.

CA-00027474-001

I have heard and considered the written and oral submissions of the parties.

The complaint made is that the Complainant was unfairly dismissed pursuant to S8 of the Unfair Dismissals Acts 1977-2015 and he is entitled to minimum notice. There are a number of preliminary objections raised by the Respondent in relation to the complaints.

In order for the complaint to proceed, I must be satisfied that the Complainant was an employee of the Respondent on the date of dismissal 1st April 2019.

The Complainant alleges that he has been employed by the Respondent as a Supervising Stagehand since 2004. The Respondent is a screen producer who operates through a qualifying company which is set up for each production, which qualifying companies are established by the Respondent in accordance with S481 of the Taxes Consolidation Act 1997 as amended.

The Respondent has produced a contract for services signed by the Complainant appointing him a construction buyer dated 26th April 2016 with the title Schedule D Crew Contract. The Complainant denies signing the contract, or seeing invoices regarding payments for the work done in 2016 as a driver. He says he was provided with remittance slips.

The Complainant accepts that he registered for self-assessment in 2010 in order to drive a tax to cover hiatus periods between roles. The Complainant did not retain his contracts of employment. No documentation regarding payment of PAYE or revenue returns or assessment for the period of employment in 2016 were produced.

The start form signed by the Complainant in 2016 specifies that only individuals approved by the Revenue Commissioners will be accepted as Schedule D and requires invoices to be submitted weekly to the Respondent. It states all other grades are to be taxed on PAYE. The form specifies the Complainant’s grade as stagehand or driver and an hourly rate. A list of equipment provided by the Complainant which are 3 vehicles is attached, with the proviso that it must be insured by the Schedule D Crew member. The Complainant was initially employed as a PAYE worker in 2004.

The Complainant gave evidence that he works for a number of other employers due to the nature of the industry where the productions are sporadic. He works for the Respondent on separate contracts, and is laid off at the end of each contract. He does not work for other employers while working for the Respondent.

Mr. Justice Edwards in High Court Minister for Agriculture and Food v Barry & Ors [2008] IEHC 216 when considering an appeal of the decision of the Employment Appeals Tribunal found:

“It was incumbent on the tribunal to ask three questions. The first question was whether the relationship between each respondent and the appellant was subject to just one contract, or more than one contract. The second question involved the scope of each contract. The third question involved the nature of each contract.”

There are a number of tests that have been established by case-law to be considered in classifying the work relationship between the parties.

In order for a contract of employment to exist there must be mutuality of obligation which is an essential of the existence of a contract of service. The Complainant says a panel was established for the allocation of work which is part of a collective agreement for the industry dating back to 1991, the mechanism for employment was on a fifty fifty basis. The Respondent disputes this.

In Nethermere (St. Neots) v Gardiner Ltd [1984] ICR 612 the Court said in relation to mutuality of obligation:

“There must be a wage or other remuneration. Otherwise there will be no consideration, and without consideration no contract of any kind. The servant must be obliged to provide his own work and skill. “

It is undisputed that the parties worked on various productions together through qualifying companies up to 2016, however no evidence has been given which shows there was mutuality of obligation. I rely on the UK decision of O’Kelly & Ors v Trust House Forte Plc [1983] ICR 728 in this respect and that at its height given the work which the Complainant carried out for other companies, the short engagements carried out with the Respondent, that the Complainant offers to work for the Respondent when he is available. I find the Complainant’s employment falls outside the provisions of the Unfair Dismissals Acts 1977-2015.

CA-00027474-002

The Complainant is not an employee and the complaint is not well founded.

CA-00027474-001

I find the Complainant’s employment falls outside the provisions of the Unfair Dismissals Acts 1977-2015 and the complaint fails.

CA-00027474-002

The Complainant is not an employee and accordingly the complaint is not well founded.

Employee, contractor, mutuality of obligation, nature of contract, scope of contract, type of contract