FTC/22/23
DECISION NO. FTD236
SECTION 44, WORKPLACE RELATIONS ACT 2015
SECTION 15 (1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003
PARTIES:
METROPOLITAN FILM PRODUCTIONS LIMITED
(REPRESENTED BY IBEC)
AND
NIGEL MURPHY
(REPRESENTED BY IRISH FILM WORKERS ASSOCIATION)
DIVISION
Chairman: Mr. Foley
Employer Member: Ms. Doyle
Worker Member: Ms. Tanham
SUBJECT
Appeal of Adjudication Officer Decision No's: ADJ-00025798 (CA-00032867-001)
BACKGROUND
The Worker appealed a decision of an Adjudication Officer in accordance with Section 15(1) of the Protection of Employees (Fixed Term Work) Act, 2003. A Labour Court hearing took place on 12 October 2023. The following is Court's Decision:-
DECISION
This matter comes before the Court as an appeal by Nigel Murphy (the Complainant) of a decision of an Adjudication Officer in his complaint made under the Protection of Employees (Fixed-Term Work) Act, 2003 against Metropolitan Film Productions Limited (the Respondent)
The Hearing
The Court had, in advance of the hearing and at the request of the Complainant, issued a witness summons in accordance with the provisions of Section 21 of the Industrial Relations Act, 1946, to a named individual. The Respondent, on behalf of that individual, had written to the Court prior to the hearing stating that, for stated reasons, the individual would not be able to attend the hearing of the Court.
The Court advised the Complainant of this situation at the outset of the hearing and asked the Complainant's representative to set out how she wished to proceed in the absence of her intended witness. The representative confirmed to the Court that she was satisfied that the hearing would proceed to a conclusion notwithstanding the absence of the witness. The Court was not advised of the evidence the Complainant had intended to lead from his witness.
In those circumstances and with the agreement of both parties, the hearing proceeded to a conclusion.
Background
The Complaint before the Court was made to the Workplace Relations Commission (WRC) on 11th December 2019.
The Complainant clarified to the Court that the alleged breaches of the Act which fell to be decided in the within appeal were:
- An alleged breach of Section 9 of the Act in 2016 in that a contract purporting to be a fixed term contract of employment was issued to him at that time which was, by operation of law at Section 9(3) of the Act, void and that his employment thereafter was on the basis of a contact of indefinite duration.
- A series of alleged breaches of Section 8 of the Act arising from the issuance of a series of fixed term contracts of employment to the Complainant by a series of legal entities on dates from 2016 onwards. Each of those contracts were unlawful in that they did not provide the written statements and objective grounds required by Section 8 of the Act.
The Complainant did not provide the Court with a copy of any contract of employment which issued to him in 2016 or at any other time and which he contended to be in breach of the Act.
The Respondent did provide the Court with a copy of a contract of employment issued to the Complainant by an entity entitled VK Six Productions DAC and dated 30th July 2018 and signed by him on that date. The Complainant's representative advised the Court at the hearing that no contention was being made that this contract was unlawful by reference to the Act at Section 8. This was the only contract of employment submitted to the Court by either party.
The Complainant's representative confirmed to the Court that no contract of employment at issue before the Court which issued to the Complainant identified the Respondent as a party to the contract. The employer in each case was a named designated activity company (DAC). The contracts, according to the Complainant, relate to a number of seasons of a television series and each contract identified the employer differently to each other. This differentiation was explained to the Court to relate to the fact that the television series were numbered from one to six as were the designated activity companies.
Preliminary issues raised by the Respondent
The Respondent submitted that it had never been the employer of the Complainant and that it was not in a position to make a substantive submission on account of the fact that it is a stranger to the employment relationship of the Complainant with a number of designated activity companies which are legal entities in themselves.
The Respondent confirmed that it 'shared' directors with some or all of the designated activity companies who are alleged to have issued fixed term contracts of employment to the Complainant.
The Respondent submitted that the within complaint was submitted to the WRC on 11th December 2019 and that, consequently, the cognisable period for the complaint, having regard to the provisions of the statute, was the six months prior to that date. The employment of the Complainant terminated on 12th October 2018 in accordance with the terms contract issued to him by VK Six Productions DAC and dated 30th July 2018 and consequently no breach of the Act can be contended to have occurred in the six months prior to the making of the complaint on 19th December 2019.
The Respondent raised an issue as regards the name of his alleged employer as detailed by the Complainant on the complaint form submitted by the Complainant to the WRC. It was accepted however that this complaint form was not before the Court and that the entity named by the WRC in its decision as being the Responding entity in respect of which that decision was made was the Respondent.
The Complainant accepted that the Respondent was not named as the employer of the Complainant on any fixed term contract of employment at issue before the Court. He contended however that the Respondent was in fact his employer because the Respondent and the various DAC's who were party to employment contracts issued to him were associated and subsidiary companies. The Complainant set out significant detail as regards the provisions of the Redundancy Payments Act, 1967, the Taxes Consolidation Act, 1997 and the Film Regulations S.I 119 of 2019.
The Complainant accepted that he had not engaged in work for the Respondent or any relevant DAC in the 12 months prior to the making of the within complaint. He accepted that the contract which issued to him from VK Six Productions DAC dated 30th July 2018 specified that his employment would terminate once the requirement for his services on Vikings Season Six ceased. He accepted that the requirement for his services on Vikings Season Six ceased on 12th October 2018. He contended however that he had been laid off by the Respondent upon the cessation of a requirement for his services on Vikings Season Six and that consequently the within complaint was made in time.
The Respondent made no submission on this matter on foot of its contention that it was never the employer of the Complainant at any material time.
The Complainant did clarify to the Court that no provision of the Redundancy Payments Act, 1967 (the Act of 1967) setting out the meaning of the term 'lay off' for the purposes of that Act had applied to the ending of his engagement with VK Six Productions DAC and that no procedure laid down in that Act had been initiated or communicated to him by the Respondent or by VK Six Productions DAC. He also confirmed that no contractual entitlement to lay him off was specified in any employment contract held by him at any material time. He also confirmed that no complaint under the Unfair Dismissals Act, 1977 or any other statute was made by him within six months of the cessation of a requirement for his services on Vikings Season Six or at all.
Evidence
The Court invited both parties to put before it any evidence relevant to the matter before the Court. The Court advised both parties that any evidence should be relevant, in the direct knowledge of the witness and should ideally address a relevant factual matter which is in dispute and requiring to be established by the Court on the balance of probabilities.
The Respondent declined to proffer testimony.
Mr Richard Boyd Barrett, T.D gave evidence on behalf of the Complainant. Mr Boyd Barrett's evidence can be summarised in the following manner.
Mr Boyd Barrett stated that he had, in the company of representatives of the Irish Film Workers Association met a Mr James Flynn, now deceased. Mr Flynn was, in the understanding of the witness, a director of the Respondent and he appeared to him, the witness, to accept that he had some form of employment relationship over a period of time with members of the IFWA. At that meeting Mr Flynn said that there was no work available for members of the IFWA but said that they would be called back.
He said that the IFWA had set up the meeting with Mr Flynn and that its members had worked on successive productions with which Mr Flynn was involved.
The witness understood that the members of the IFWA had a grievance relating to the nature of employment in the industry. He said that the matter had been discussed at a committee of the Oireachtas of which he was a member.
The Law
The Act at Section 1 defines an employee and an employer as follows:
"employee" means a person of any age, who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer and, for the purposes of this Act, a person holding office under, or in the service of, the State (including a civil servant within the meaning of the Civil Service Regulation Act 1956 ) shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority, a harbour authority, the Eastern Regional Health Authority, the Northern Area Health Board, the East Coast Area Health Board or the South-Western Area Health Board, a health board or vocational education committee shall be deemed to be an employee employed by the authority, health board or vocational education committee, as the case may be;
"employer" means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;
The Act at Section 1 defines an associated employer as follows:
1(2) Employers are deemed to be associated if -
(a) one is a body corporate of which the other (whether directly or indirectly) has control, or
(b) both are bodies corporate of which a third person (whether directly or indirectly) has control.
The Act at Section 8 makes provision as follows:
8.-(1) Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is-
(a) arriving at a specific date,
(b) completing a specific task, or
(c) the occurrence of a specific event.
(2) Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.
(3) A written statement under subsection (1) or (2) is admissible as evidence in any proceedings under this Act.
(4) If it appears to a rights commissioner or the Labour Court in any proceedings under this Act-
(a) that an employer omitted to provide a written statement, or
(b) that a written statement is evasive or equivocal,
the rights commissioner or the Labour Court may draw any inference he or she or it consider just and equitable in the circumstances.
The Act at Section 9 makes provision as follows:
9.-(1) Subject to subsection (4), where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.
(2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.
(3) Where any term of a fixed-term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.
(4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.
(5) The First Schedule to the Minimum Notice and Terms of Employment Acts 1973 to 2001 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous.
Observations of the Court arising from the submissions of the parties
The parties made comprehensive submissions to the Court as regards the nature of the industry within which the Respondent operated and in which the Complainant was employed. The Court heard the comprehensive written and oral submissions of the parties and heard any testimony either party wished to proffer.
At all times the Court emphasised to the parties that it was a creature of statute and that its jurisdiction in the within appeal was confined to the application of the Act to the facts of the matter which could be established. It appeared to the Court that both parties understood the statutory framework underlying the appeal before the Court.
It is clear to the Court that the Complainant is concerned as regards aspects of the structure and nature of employment in the film industry. He appears to be a member of an organisation which holds concerns similar to those of the Complainant.
This Court advised the parties that, when exercising the specific jurisdiction conferred upon it by the Act, it is not at large to express general views on the nature or structure of employment in the industry and neither is it at large to enter upon the operation of company or revenue law.
There has been no submission made to the Court that a series of designated activity companies which allegedly issued contracts of employment to the Complainant are or were other than lawful legal entities. The Court has not been provided with copies of any contract of employment which might have been issued to the Complainant by any entity other than a contract which issued in 2018 by an entity named in that contract as VK Six Productions DAC and signed by the Complainant at that time.
The Court is satisfied that both parties understood at the hearing the nature of the Court's jurisdiction as regards the within appeal.
Discussion and conclusion on the matter before the Court
The Complainant has laid great weight on Section 9 of the Act to support his contention that his employer at all material times was the Respondent. The basis for that contention appears to be a contention that the respondent was, within the meaning of the Act, an associated employer of the various DACs which were named on contracts of employment allegedly issued to the Complainant but not provided to the Court.
On plain reading of the Act at section 9, it can, in the view of the Court, be concluded to relate to the protection of workers from situations where associated employers rather than a single employer engage in an employment relationship with a worker through the issuance of successive fixed term contracts of employment. The relationship between the various DACs which allegedly issued successive contracts of employment to the Complainant has not been put at issue in the within appeal.
It is submitted by the Complainant however, that because the Respondent is or was, in his view, an associated employer of the various DAC's which issued contracts of employment to the Complainant which were not provided to the Court, the Respondent should, within the meaning of the Act, be taken as the employer of the Complainant during the cognisable period for the within compliant.
It is further submitted by the Complainant that the Court should conclude that, by operation of the law, the Complainant was employed by the Respondent under a contract of indefinite duration with effect from 2016.
Finally, it is submitted by the Complainant that he should be regarded as having been laid off by the Respondent with effect from the termination on 12th October 2018 of a fixed term contract of employment issued to him in July 2018 by VK Six Productions DAC.
The Act defines an employer as:
"employer" means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;
An employee is defined by the Act in relevant part as:
"employee" means a person of any age, who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment
The Complainant submits, in effect, that he entered into a series of successive contracts of employment with a series of designated activity companies. He does not contend that he entered upon a contract of employment at any material time with the Respondent and no contract of employment identifying the Respondent as a party to that contract was put before the Court.
The Court cannot accept that the Respondent, because it may be or have been an associated employer of any designated activity company which may have entered upon a contract of employment with the Complainant became, as a result, the employer of the Complainant within the meaning of the Act.
For the reasons set out above the Court has concluded, within the meaning of the Act, that the Respondent was not at any material time the employer of the Complainant and neither was he at any material time an employee of the Respondent.
Having reached this conclusion, the Court need not consider the contention that the complaint before the Court was made outside applicable time limits or otherwise consider the within complaint made against the named Respondent and the submissions made by the Complainant as regards alleged breach of the Act by the Respondent.
Decision.
The Court decides that the within appeal must fail. The decision of the Adjudication Officer is affirmed.
The Court so decides.
Signed on behalf of the Labour Court
| CO'R | Kevin Foley |
| 23 November 2023 | ______________________ Chairman |
NOTE
Enquiries concerning this Decision should be in writing and addressed to Clodagh O'Reilly, Court Secretary.