Complainant

Respondent

Parties

John Arkins

Metropolitan Film Productions Limited

Representatives

Liz Murray, Irish Film Workers Association

Ciaran Loughran, Irish Business & Employers’ Confederation

Act

Complaint Reference No.

Date of Receipt

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

CA-00032858-001

11/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00032858-002

11/12/2019

Metropolitan Film Productions Limited was established in 1997 as an Irish producer company of film and television projects.  The company’s website states that,

“…Metropolitan Films, through its international and production entities, develops, produces and provides production services to international film and television projects that locate in Ireland…”

Mr Arkins has worked as a supervising stagehand on films and television programmes developed by Metropolitan Films since 1998.  At the hearing, he said that he generally worked around 48 hours a week, but sometimes up to 66 hours.  His hourly rate of pay was €27.00.  Mr Arkins said that he has been given no work since December 5th 2019 and he claims that he has been unfairly dismissed.  He claims that his dismissal arises from his activities as a shop steward in IFWA.  He also claims that he was penalised when he asserted his right to a contract of indefinite duration.  The respondent’s case is that Mr Arkins was not employed by Metropolitan Films and, that his complaints have been submitted outside the statutory time limits.

While the parties are named in this decision, for the remainder of this document, I will refer to Mr Arkins as “the complainant,” and to Metropolitan Film Productions as “the respondent.”

Under section 481 of the Taxes Consolidation Act 1997, a film production company may be eligible for “section 481 film relief,” a credit against corporation tax.  A credit of 32% may be offset against eligible expenditure, 80% of the cost of production or €70 million, whichever is the lowest.   Asserting that “the TV and film industry is unique and unlike any other,” Mr Loughran explained that, to qualify for film relief, a qualifying company must be set up for the purpose of producing and distributing a single film or TV series.  Mr Loughran said that the legislation requires the qualifying company, a designated activity company (DAC) to be a wholly owned subsidiary of the parent production company.  Each DAC must apply to the Revenue Commissioners for a Section 481 Certificate to qualify for film relief.  Once a film or TV programme is completed, the DAC is audited, a compliance report is submitted to the Revenue Commissioners and the DAC is dissolved.    

A Certificate of Incorporation submitted in evidence shows that a company called Badlands Three TV Productions DAC (“Badlands 3”) was established on May 5th 2017.  A copy of a fixed-term contract shows that the complainant’s start date with that company was June 26th 2017.   The contract states that his hourly rate was €35.77 and that he was at the grade of “HOD Stagehand / Driver.”  A third document is a letter provided to the complainant for the Department of Social Protection in which the construction manager states that the complainant was employed by Badlands 3 from January 8th until August 31st 2018 and that “[t]he production is now coming to an end and we have no further work.” 

The respondent’s position is that the complainant was not employed by them, but by a succession of designated activity companies, the most recent being Badlands 3, until August 31st 2018.  On this basis, Mr Loughran raised two preliminary points; firstly, he argued that the complainant was never employed by the respondent and, secondly, he said that these complaints have been submitted outside the time limits prescribed at section 8(2) of the Unfair Dismissals Act 1977 and section 41(6) of the Workplace Relations Act 2015. 

The Complainant’s Argument that the Respondent was the Employer

It is the complainant’s case that his employer was Metropolitan Film Productions Limited and that he was entitled to a contract of indefinite duration based on his “year on year” employment on various film and TV projects since 1998.  The complainant was employed on a series of fixed-term contracts which had no end-date.  He was laid off when each film or TV project was finished and re-employed when the next one was starting up.     

In her submission on behalf of the complainant, Ms Murray argued that the existence of a series of collective agreements between the respondent and SIPTU, and subsequently IFWA, means that the respondent was his employer.  In support of this argument, Ms Murray referred to the decision of the High Court in Conway and Others v the Health Service Executive[1], a decision upheld by the Supreme Court on appeal.  The plaintiffs in Conway, a group of psychiatric nurses employed in Áras Attracta in County Mayo, claimed that their employer failed to investigate their conduct in respect of the treatment of residents in accordance with the HSE’s Trust in Care Policy and the disciplinary procedure.  Referring to the Trust in Care Policy, and arguing that this formed part of their contractual entitlements, the case made by the nurses was that,

“…the policy was intended to give rise to contractually binding obligations between the parties.  They further consider that it was intended to create legal relations between the trade unions, their members and the defendant and that it is sufficiently certain, unambiguous and clear to be capable of having contractual effect.”    

An extract from a 1991 agreement between Screen Producers Ireland (formerly Film Makers Ireland) and the Irish Congress of Trade Unions group of film unions was submitted at the hearing.  Clause 26 provides for paid sick leave based on continuous employment.

Ms Murray said that there has been in place “an implied Local Agreement on discounted rates of pay negotiated between the Parties and operable since 2012.”  To provide the company with an advantage when pitching for business in the United States, Ms Murray said that the complainant and his colleagues accepted a pay reduction of 12.5% and gave up allowances of €300 per week.  As a SIPTU shop steward at the time, the complainant was instrumental in getting agreement on these pay cuts.  In return, Ms Murray said that they were promised that their service would be recognised and that a profit-sharing scheme would be set up. 

A copy of a “Local Construction Agreement” which was to run from January 2017 until December 2020  between the respondent and IFWA was also provided and this sets out basic terms and conditions for IFWA construction workers.  On January 6th 2020, Ms Anneliese O’Callaghan, the head of production in an associated company, World 2000 Entertainment Limited, wrote to IFWA in response to a request to review the terms of the Agreement.  Referring to industrial action on the set of the production of the sixth series of Vikings in September 2018, she said that they were “treating the Agreement as at an end.”  In March 2020, the union referred a dispute to the Labour Court under section 20 of the Industrial Relations Act 1969[2].  Two issues in the Local Agreement were in contention; a “service mechanism” and the establishment of a profit sharing scheme.  The Labour Court was unable to establish that any agreement existed in relation to either issue, although the respondent conceded that they intended to provide for a 2.5% profit share.  They also said that they made no profit between 2016 and 2018, when the Agreement was “live” and the complainant was employed by Badlands 3. 

Film Relief under Section 481 of the Taxes Consolidation Act 1997

Referring to section 481 film relief, Ms Murray said that, to qualify for this tax credit, the producer company and the qualifying company must provide an undertaking in respect of quality employment.  Representatives of both entities must sign a declaration to confirm that they are compliant with employment law, including the provisions of section 9(2) of the Protection of Employees (Fixed-term Work) Act 2003.  This provides that an employee is considered to be employed on a contract of indefinite duration when they have been employed on two or more consecutive fixed-term contracts for an aggregate period of four years.  In the papers she submitted at the hearing, Ms Murray included a copy of a document published on the website of the Revenue Commissioners listing the companies who have benefited from section 481 film relief.  This document shows that, between 2016 and 2021, the respondent availed of tax relief of more than €100 million in respect of 22 individual productions.

Evidence of the Complainant

The complainant gave evidence that he was employed from June 2017 until August 2018 on the Badlands 3 TV series and that he worked on that job in Kilternan, County Dublin.  Previously, he worked on the second series of Badlands until December 16th 2016.  He said that he was employed on film and TV work produced by the respondent and associated companies for more than 20 years.  He was always the first stagehand on the respondent’s productions.

The complainant said that he was in touch with some TDs about conditions of employment in the film industry and, on February 13th 2018, he was invited to appear before the Oireachtas Committee on Media, Tourism, Arts, Culture, Sports and the Gaeltacht.  Before the work on the third Badlands series was completed, the complainant said that he spoke to a director of the respondent company, Mr James Flynn, about new productions in the pipeline.  He was laid off on August 31st 2018. 

Correspondence submitted by IFWA revealed that, in September 2018, notice of industrial action was issued to the employer on the production of the Vikings series and it appears that there was a brief work stoppage.  The respondent owns the qualifying company / DAC that produced Vikings and between November 2018 and March 2019, Mr Flynn had four meetings with IFWA to discuss the terms and conditions of their members, and, according to the complainant’s submission, to consider “a mechanism whereby their service would be recognised on incoming productions which the employer had planned.”  During these meetings, the complainant said that he was given no indication that his employment was in jeopardy or that he wouldn’t be called back when a production was ready to start.  At another point, he said, “you raise an issue of concern and you’re told that you won’t be on the next production.”

Throughout the 20 years that he has worked in the industry, the complainant said that his contact point was James Flynn.  He said that he sent emails to him at Metropolitan Films, and before that, to Octagon Films.  He said that he never sent an email to a DAC.

Departure from Custom and Practice in the Engagement of Workers

On November 25th 2018, Ms Murray wrote to Mr Flynn, summarising their discussions at a meeting the previous week.  In her letter, she said that the union’s concerns were around the issue of how crew is engaged in the construction department and the recent departure from custom and practice in the engagement of IFWA members. 

At a meeting in February 2019, the complainant said that Mr Flynn undertook to speak to the heads of departments and managers about the service of the workers.  On March 9th 2019, Ms Murray received a letter signed by a group of IFWA members informing her that they were resigning from the union.  The letter states:

“We the undersigned wish to formally notify you that we are resigning our membership with the union. 

We feel that membership of IFWA will be detrimental to any future employment.

Please accept this letter as our official notice of resignation effective immediately.”

The complainant said that this group of construction workers who resigned from IFWA and who were willing to forego their entitlements were called back to work.  He said that he continued to engage with Mr Flynn to have his service recognised and he thought he would be called back.  In April 2019, Mr Flynn became seriously ill and he wasn’t available for further discussions.

In September 2019, the complainant said that he heard about a production stating up called, “The Last Duel.”  As Mr Flynn was ill, on November 26th 2019, the complainant contacted Ms O’Callaghan, the head of production in the company behind the film.  She informed the complainant that construction wouldn’t start until January 2020, but he said he knew that a construction crew had already moved onto the set.  Up until that film, he said that he was always the first stagehand to be called and he replied to Ms O’Callaghan, suggesting that he had been “black-balled” and penalised.  He didn’t get a reply, and he wasn’t called back to work in January 2020.  In June 2021, Mr Flynn was back at work, and he didn’t enquire about where the complainant was.

Ms Murray said that the complainant’s case is that, until he wasn’t re-employed in September 2019, he didn’t know that he was dismissed.  She said that he has been penalised for speaking at the Oireachtas Committee about the conditions of employment in the industry and for insisting “on the application of his legal rights of entitlement.”  

Statutory Time Limits for Submitting Complaints

As a first principle, before moving to consider the substance of these complaints, I must establish that I have jurisdiction under the relevant statutes. 

Two complaints have been submitted; the first under the Unfair Dismissals Act 1977 and the second under the Protection of Employees (Fixed-term Work) Act 2003 (“the Fixed-term Work Act”).  Section 8(2) of the Unfair Dismissals Act provides that a claim for redress must be initiated within six months of the date of dismissal, or within 12 months, if I am satisfied that there is reasonable cause for the delay.  The time limit for submission of a complaint under the Fixed-term Work Act is set out in section 41(6) of the Workplace Relations Act 2015.  This also provides that a complaint must be submitted no later than six months after the date of the contravention to which it relates.  Section 41(8) provides that, for reasonable cause, an extension of the time limit of up to 12 months may be permitted.  No application for an extension of the time limit was made with regard to either of the complaints.

CA-00032858-001:  Complaint under the Unfair Dismissals Act

On August 31st 2018, the complainant finished up working on a TV series, Badlands 3, produced by the respondent company through a DAC.  He said he didn’t know he was dismissed until he wasn’t called in for work on a new film, “The Last Duel,” which commenced production over a year later, in September 2019.  He said that he contacted the head of production on November 26th 2019, enquiring about a start date.  When he didn’t get a response to a follow-up email on December 4th, he concluded that he was dismissed the following day.

It is the complainant’s case that he was employed on a contract of indefinite duration comprised of a series of fixed-term contracts and that he was laid off in between these contracts.  On behalf of the respondent, Mr Loughran argued that this dispute arises from the fact that the complainant wasn’t given work on the production of Vikings 6 in September 2018.  He said that the complainant knew then that he wasn’t being re-employed.  Ms Murray said that Vikings was made by an associated company and that this is a separate issue and not relevant to the present complaint.  However, the Revenue document submitted by the union which lists the beneficiaries of section 481 film relief shows that, on August 8th 2018, Metropolitan Films was a recipient of tax relief in respect of the making of Vikings series 6.

We know from the correspondence submitted in evidence that there was a work stoppage on the set of Vikings 6 in September 2019.  As the IFWA shop steward, I am satisfied that the complainant had some involvement in that industrial action.  It is clear that the meetings between IFWA and James Flynn, a director of the respondent company, which the complainant attended in the autumn of 2018 were intended to address the union’s concern about the criteria that applied to the re-hiring of construction crew.  At the hearing of this complaint, the complainant said that they explained to Mr Flynn that “the men who took the pay cuts were always the first on the job” and that they turned up in order of their length of service.  This discussion is confirmed in an email on Monday, November 26th 2018 from Mr Flynn to Ms Murray:

“At our meeting on Thursday, I agreed to look more closely at the crewing practices over the years, particularly since the 2012 local agreements and to discuss with other parties, including yourselves, to confirm same.”

It is apparent therefore, that, in September 2018, the union had concerns about their members not being hired on the production of Vikings 6.  In his evidence, the complainant said, “you raise an issue of concern and you’re told you’re not going to be re-hired.”  I am satisfied that the complainant was one of the IFWA construction crew who was not employed on that production and, that, as the longest-serving person on the crew, he felt that this was unfair.  It was open to him to submit a complaint to the WRC at that time or shortly afterwards.

A further indication that the complainant was not going to be offered work with the respondent or any related company occurred in March 2019, when the construction crew who resigned from IFWA were re-hired.  At this stage, it must have been apparent to the complainant that he was in dispute with his former employer; however, he did not submit a complaint to the WRC. 

In April 2019, the discussions with Mr Flynn came to an end when he became seriously ill.  As it was clear that no progress could be made without Mr Flynn’s involvement, and, as the complainant had not been offered any work at that point, it was open to him then to submit a complaint that he had been unfairly dismissed. 

Having examined the complainant’s evidence, I do not accept that he realised he was dismissed in September 2019, when he wasn’t offered work on the production of The Last Duel.  I am satisfied that he was dismissed when he was not re-employed on the production of Vikings 6 in September 2018. 

Aside from this finding, I must reach a conclusion on this matter having regard to the meaning of the “date of dismissal” of an employee on a fixed-term contract, which is at section 1(c) of the Unfair Dismissals Act:

[W]here a contract of employment for a fixed term expires without its 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 the expiry or cesser.

From this, it is apparent that, in circumstances where a fixed-term contract is not renewed, the Unfair Dismissals Act intends that the date of dismissal is the date that the previous contract expired.  As the complainant’s previous contract with a Metropolitan-controlled company was August 31st 2018, the time limit for submitting a complaint of unfair dismissal expired on February 28th 2019.

CA-00032858-002:  Complaint under Protection of Employees (Fixed-term Work) Act 2003

The complainant’s case is that his was penalised by being dismissed for invoking his right to a contract of indefinite duration as provided for at  section 9(2) of the Fixed-term Work Act.  This complaint was submitted to the WRC on December 11th 2019.  The facts of this complaint are the same as those submitted by the complainant to argue his case under the Unfair Dismissals Act.  As I have concluded that the complainant was dismissed in September 2018, this is the date on which the alleged penalisation occurred.  I find therefore, that this complaint under the Fixed-term Work Act is also outside the time limit and I have no jurisdiction to conduct an enquiry. 

CA-00032858-001:  Complaint under the Unfair Dismissals Act

I have decided that this complaint has been submitted outside the time limit prescribed at section 8(2) of the Unfair Dismissals Act 1977.  For this reason, I have no jurisdiction to make any further enquiries.

CA-00032858-002:  Complaint under the Protection of Employees (Fixed-term Work) Act 2003

I have decided that this complaint has been submitted outside the time limit prescribed at section 41(6) of the Workplace Relations Act 2015.  For this reason, I have no jurisdiction to make any further enquiries.

Expiry of the time limit for submitting a complaint.