Complainant

Respondent

Parties

Patrick  Boland

World 2000

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 13 of the Industrial Relations Act, 1969

CA-00036459-001

30/05/2020

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

CA-00036459-002

30/05/2020

The complainant was employed as a painter and worked on the sets of film / TV productions shot in  studios in Co. Wicklow.  The complainant was latterly employed on the production of the TV series, ‘Vikings’.  This employment commenced in 2013 and separate contracts (totalling 8) were issued to the complainant covering work on five series of the production.  These contracts were of varying length and there were also periods of non-employment on the production between these contracts.  Each series was an individual production and a separate Designated Activity Company (DAC) was established for each such production.  The last contract that the complainant was engaged on terminated in October 2018.   

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI No. 359/2020, which designates the WRC as a body empowered to hold remote hearings.  

The correct title of the employer is World 2000 Entertainment Ltd. and the omission of “Entertainment Ltd.” on the complaint form is a technical error which it is requested be amended.

The complainant was engaged on successive fixed-purpose contracts of employment since June 2013 by the various DACs engaged in the production of the TV series ‘Vikings’ and with which World 2000 Entertainment Limited has Directors in common.

The complainant habitually returned to work with the respondent in the order of his place on a panel and therefore had a legitimate and lawful expectation of a return to work on the next series of ‘Vikings’. 

The complainant only became aware of his exclusion from work in January 2020 when he sought clarification as to his recall and was informed that there was no availability of work for him.  The complaint is therefore not out of time.

The complainant is not, nor has he ever been, an employee of a company named or trading as World 2000.  He was last employed by VK Six Productions DAC, the DAC for season 6 of ‘Vikings’, solely for the purpose of working on that series.

The complaint is manifestly out of time as his employment with VK Six Productions DAC ended on 5 October 2018 and the complaint was lodged with the WRC on 30 May 2020.

Complaint No. CA-00036459-001:

This is a dispute referred under the Industrial Relations Act, 1969.  The complainant’s representative advised that this matter had been settled and that therefore there was no requirement for a recommendation on the issue.

Complaint No. CA-00036459-002:

This is a complaint under the Unfair Dismissals Act, 1977.  Both parties furnished comprehensive written submissions in support of their respective positions.  The background regarding how film productions using this country as a location for filming can avail of tax relief measures set up under legislation was outlined.  To avail of this facility it is necessary that an entity be established for that specific production and that in recent times this has taken the form of a Designated Activity Company (DAC).  At the termination of the particular production the DAC is dissolved and a compliance report furnished to the Revenue Commissioners.  In the case of the TV programme, ‘Vikings’ separate DACs were set up for each series of the programme. 

The complainant worked as a carpenter on the set of the ‘Vikings’ production which was based at film studios in Ashford, Co. Wicklow.  This employment commenced in June 2013.  The initial employment lasted for 5 months and was followed by a number of other contracts of varying lengths with breaks in between.  The complainant submitted the following information in that regard:

2013     June to October

2014     16 May to 31 October

2015     27 March to December

2016     15 January to 18 March

              29 April to 30 December

2017     27 January to 28 April

              8 September to 29 December

2018     27 July to 12 October.

The complainant also stated that five different companies had been involved in the employment of the complainant during this period.

Preliminary Issues: 

A number of preliminary issues were raised by the parties at the commencement of the hearing.  The respondent’s representative argued that the respondent named in the proceedings, World 2000, never employed the complainant.  The representative was present on behalf of World 2000 Entertainment Limited.  The representative for the respondent stated that the complainant at the time of the termination of his employment was employed by VK Six Productions DAC.  The other issue raised by the respondent was with regard to the complaint being statute barred.  The respondent submitted that the complainant’s engagement with VK Six Productions DAC ended on 5 October 2018 and that the complaint was submitted to the WRC on 30 May 2020.  The complaint was therefore manifestly out of time for investigation under the Unfair Dismissals Act.

The complainant’s representative stated that the erroneous omission of the words “Entertainment Limited” in the title of the respondent is no more than a technical error on the complaint form and requested that the title be amended in order to reflect the correct legal title of the respondent.  A number of legal precedents were cited in support of this request.  It was further argued that the various entities that undertook the production of the ‘Vikings’ series were specifically created for the purpose of the requirements of the Revenue rules covering the taxation of such film productions, that they shared common directors with World 2000 Entertainment Limited, and that they were effectively controlled by that company.  In addition, it was stated that the contract issued in April 2017 became one of indefinite duration by operation of the law.  The reality in film production, it was claimed, was that there could be a considerable hiatus between the ending of one production and the commencement of another which should be treated as a period of lay-off and did not affect the legitimate expectation on the part of the complainant that he would be re-engaged in his turn when production restarted.  The complainant was eventually informed on 6 January 2020 that he was not being re-engaged and it was submitted that this date was the complainant’s date of dismissal.

Section 8(2) of The Unfair Dismissals Act, 1977, states:

A claim for redress under this Act shall be initiated by giving notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General –

(a)    within the period of 6 months beginning on the date of the relevant dismissal, or

(b)    within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in the circumstances where the adjudication officer is satisfied that the giving of notice within the period referred to in paragraph (a) was prevented due to reasonable cause.      

The definition of ‘date of dismissal’ is contained in Section 1 of the Act thus:

‘Date of dismissal’ means - 

(a)    where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.

(b)    where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973, the date on which such notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates –

(i)                  the earliest date that would be in compliance with the provisions of the contract of employment,

(ii)                the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of employment Act, 1973,

(c)     where a contract for employment for a fixed term expires without it being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited, but was, at the time of its making, incapable of precise ascertainment), there is a cesser of the purpose, the date of expiry or cesser.

The complainant was issued with documentation in respect of his employment as a member of the construction crew.  The final documentation was issued to the complainant dated 23 July 2018.  This included a document containing 31 clauses with the heading ‘VIKINGS Season Six (“Series”) LETTER OF ENGAGEMENT’.

Clause 1 stated that the complainant would commence employment with VK Six Productions DAC on 23 July 2018 and that no period of previous employment with any other company would count as part of his continuous service.

Clause 4 stated that the complainant would be employed on a fixed purpose contract for the sole purpose of Vikings Season Six.  Clause 5 stated that the contract of employment would cease once the requirement for the complainant’s services on Vikings Season Six ceased and noted that in that eventuality the Unfair Dismissals Acts 1977 – 2007 would not apply.  On 28 September 2018, in a letter headed VK Six Productions DAC, the complainant was advised that VK Six Productions had no further requirement for the complainant’s services as a painter and that his employment with the company would terminate on Friday, 5 October 2018.  A P45 Form was subsequently issued giving the date of cessation as 5 October 2018.

The complainant said that as had previously occurred he expected to be recalled to work once the process of setting up the next production had been completed.  In the interim he would have found some employment elsewhere.  In January 2020, having learned that production was about to re-commence, the complainant sought clarification as to his position and was informed that there was no availability for him.  He lodged his complaint with the WRC on 30 May 2020.

I note that during the hearing the complainant’s representative suggested that the Complainant’s employment actually ended on 12 October 2018 but did not elaborate on that matter.  It is clear, however, that the complainant was not employed by any entity in relation to work on the ‘Vikings’ production after mid-October 2018.  As detailed above in Section 8(2) of the Unfair Dismissals Act a claim must be initiated within 6 months of the date of dismissal or in certain defined circumstances the adjudication officer may extend this to a period not exceeding 12 months from the date of dismissal.  Regardless of which date in October 2018 applies, the time frame for initiating a complaint under either subsection (2)(a) or (2)(b) of Section 8 has expired.  

The Labour Court in a recent decision, Element Pictures Limited v John Arkins, (UDD2146), dealt with a similar set of circumstances.  In that case the final contract ceased on 29 April 2016 and the complaint was referred to the WRC on 3 April 2019 with the complainant citing 1 April 2019 as his date of dismissal.  In its determination the Court stated:

“The complaints referred by the complainant to the Workplace Relations Commission on 3 April 2019 against the Respondent are manifestly statute-barred.  It is not therefore necessary for the Court to further explore the relationship between the Respondent and the Qualifying Company by which the Complainant was engaged (ostensibly, at least) pursuant to a contract for services up until 29 April 2016.  Nor is it necessary for the Court to go behind the contractual arrangements entered into by the Complainant and Kilternan Film Productions Ltd / DAC.”      

Having found that this complaint is statute-barred I have no jurisdiction to investigate the matter further.

Complaint No. CA-00036459-001:

This dispute under the Industrial Relations Act, 1969, was withdrawn at hearing.

Complaint No. CA-00036459-002:

This is a dispute under the Unfair Dismissals Acts, 1977 – 2015.  For the reasons outlined above I find that the complaint was submitted outside the time limits contained in the legislation for initiating a complaint and that consequently I do not have jurisdiction to investigate the complaint.  

Unfair Dismissal Acts 1977 – 2015     Time Limits for Initiating a Complaint