FTD247

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00025837 (CA-00032893-001)

BACKGROUND:

The Employer appealed the Adjudication Officer’s Decision to the Labour Court.  A Labour Court hearing took place on 5 July 2024.

The following is the Court's Decision.

DECISION:

Background to the Appeal

This is an appeal on behalf of Metropolitan Films International Limited (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00025837, dated 19 December 2023) under the Protection of Employees (Fixed-Term Work) Act 2003 (‘the Act’). Notice of Appeal was received in the Court on 24 January 2024. The Court heard the appeal in Dublin on 5 July 2024. Mr Raymond Lyons (‘the Complainant’) declined to give oral evidence at the hearing. Mr David McLoughlin, a director of the Respondent company gave sworn evidence to the Court.

The Complaint

Ms Murray of the Irish Film Workers’ Association told the Court that the claim being advanced on the Complainant’s behalf is that the Respondent breached section 8 of the Act by employing the Complainant on a succession of fixed-term contracts none of which provided objective justification either for his further employment on a fixed-term basis or for not offering him a contract of indefinite duration.

It is common case that the Complainant was engaged as a construction stagehand on different TV productions such as seasons 1 to 3 of ‘Penny Dreadful’ and ‘Into the Badlands Season 3’. It is also common case that a separate designated activity company (‘DAC’) was incorporated for the purposes of each individual production. In the case of ‘Into the Badlands Season 3’, this was Badlands Three TV Productions DAC which company employed the Complainant as a PAYE worker between 28 June 2017 and 22 June 2018, with a period of lay-off from 15 December 2017 until 5 February 2018.

There was no documentary evidence before the Court that the Complainant, at any time, entered into an employment agreement with the Respondent. Nevertheless, the Complainant submits that each production on which he worked was “undertaken by the same PRODUCER [sic] company with both Directors who are the Shareholders in common with each DAC which they set up to draw down further tranches of s.481 Relief.” The Respondent submits that the Complainant was never in an employment relationship with the Respondent, and that accordingly the complaint is unsustainable and must fail.

Evidence of Mr David McLoughlin

The witness told the Court that he has been a director of the Respondent company since 29 March 2024. He said that he became a director of Badlands Three TV Productions DAC in February 2023 when he replaced a recently deceased director. The witness confirmed that he is familiar with the Respondent company’s books and records and that those books and records do not contain any documents evidencing the existence of a contract between the Respondent and the Complainant. The witness also told the Court that he is likewise familiar with the books and records of Badlands Three TV Productions DAC and that they do include documents that attest to a contractual arrangement between it and the Complainant. The witness pointed to a Start Form for the Complainant, which was exhibited, and which shows his start date with Badlands as 28 June 2017. That document bears the signature of Charlotte Keating, a Production Supervisor at the time with Badlands Three TV Productions DAC.

The witness next pointed to a document which is a written contract of employment between the Complainant and Badlands Three TV Productions DAC. This is signed on behalf the employer by Mr Stephen Burt, the Production Manager. According to the witness, the Complainant was paid a salary by Badlands Three TV Productions DAC for the duration of his engagement by it and income tax and other statutory deductions were made from that salary and remitted on his behalf to Revenue.

Ms Murray declined to cross-examine the witness.

Discussion and Decision

The documentary evidence before the Court, corroborated by Mr McLoughlin’s sworn oral evidence, establishes that the Complainant was employed by Badlands Three TV Productions DAC as a PAYE worker between 28 June 2017 and 22 June 2018, with a period of lay-off from 15 December 2017 until 5 February 2018. There is no evidence before the Court, documentary or otherwise, that supports the Complainant’s assertion that he was employed at any time by the Respondent.

For this reason, the appeal succeeds, and the decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
SOC	______________________
7 August 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Sinéad O'Connor, Court Secretary.