Complainant

Respondent

Parties

Paul Arkins

World 2000 Entertainment Limited

Representatives

Liz Murray, Irish Film Workers’ Association

Ciarán Loughran, Irish Business and 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-00035017-001

04/03/2020

The complainant commenced working as a stagehand on a production of “The Count of Monte Christo” in 1999 and he went on to work on a succession of films produced by Morgan O’Sullivan and his co-director, the late Mr James Flynn.  Two companies were headed up by Mr O’Sullivan and Mr Flynn, World 2000 Entertainment Limited and Octagon Films, which subsequently became Metropolitan Films International Limited.  For 25 years prior to Mr Flynn’s untimely death in 2023, the two men were the driving force behind a raft of acclaimed television and film productions that helped to establish Ireland as a film-making location. 

At the hearing, the complainant said that he normally worked around 54 hours a week.  He was promoted to the job of supervising stagehand in 2007.  In December 2018, his hourly rate of pay was €27.76.  He and his colleagues were employed for the duration that a film was in production, and then they stopped working and waited for a new film to start.  The complainant said that he has been given no work since he was laid off on December 14th 2018 at the end of the production of “Vikings 6.”  He said that work started up again in December 2019 on a series to be shown on Netflix called “Valhalla,” but he was not offered work.  He believes that the reason he was not called back to work is because of his membership of IFWA.  He claims that, by not being offered work in December 2019, he has been unfairly dismissed.

Government Support for Film Production

Section 481 of the Taxes Consolidation Act 1997 was enacted to encourage investment in the Irish film industry.  In his submission, Mr Loughran informed me that since 2015, section 481 relief operates as a corporation tax credit.  A credit of 32% may be offset against eligible expenditure, 80% of the cost of production or €70 million, whichever is the lower.  To qualify for section 481 relief, a qualifying company must be set up for the purpose of producing and distributing a single film or TV series.  The qualifying companies are established as designated activity companies or “DACs,” similar to what were formerly referred to as special purpose vehicles or “SPVs.”  The DAC must be a wholly owned subsidiary of the parent production company.  Mr Loughran explained that, once a film or TV programme is finished production, the DAC is audited, a compliance report is submitted to the Revenue Commissioners and the DAC is dissolved. 

This requirement for production companies to establish a DAC for every separate film or TV series is at the heart of a dispute between IFWA and World 2000 Entertainment Limited and a related company, Metropolitan Films International Limited, of which Mr O’Sullivan and the late Mr Flynn were directors.  Employees are recruited at the beginning of every production and dismissed when the production is finished, or when the aspect of the work on which they are engaged is completed.  The complainant and his colleagues worked for many years on dozens of film and television productions, but, because they were treated as if they were employed by a newly established DAC each time a film went into production, they were not considered to be permanent employees.

Departure from Custom and Practice in the Engagement of Workers

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.  Metropolitan Films International Limited owns the qualifying company that produced Vikings and between November 2018 and March 2019, Mr Flynn had four meetings with IFWA to discuss the terms and conditions of its members, and according to Ms Murray, to consider a mechanism whereby their service would be recognised.  On November 25th 2018, Ms Murray wrote to Mr Flynn, summarising their discussions at a meeting the previous week and expressing concern about the departure from the “longest service first” practice for hiring IFWA members.  At a meeting in February 2019, Ms Murray said that Mr Flynn undertook to speak to the heads of departments and managers about the service of the workers.  However, on March 9th 2019, she received a letter signed by several IFWA members informing her that they were resigning from the association.  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.”

Ms Murray said that the construction workers who resigned from IFWA and who were willing to forego their entitlements were called back to work.  IFWA continued to engage with Mr Flynn to have the service of its members recognised and the complainant expected to be called back.  In April 2019, Mr Flynn became ill and he wasn’t able to participate in further discussions.

IFWA argues that the complainant was “blacklisted” by his employer because of his association with the union, and because of the statements made by its shop steward, Mr Arkins, when he appeared before an Oireachtas Committee in February 2018.  They argue that the failure of his employer to call him back to work in December 2019 amounts to a dismissal.

Preliminary Issues

On behalf of World 2000 Entertainment Limited (“World 2000”), Mr Loughran raised two preliminary issues.  Firstly, he submitted that the complainant was not employed by World 2000, but that he was engaged in the past as a PAYE employee by VK Six Productions DAC, that his employment was terminated on December 14th 2018 and that this complaint is against the wrong respondent.  Secondly, he argued that the complaint has been submitted outside the statutory time limit at s.41(6) of the Workplace Relations Act 2015.

World 2000 Entertainment Limited was not the Employer

For World 2000, Mr Loughran submitted that the complainant was not employed by them but, by a succession of designated activity companies, the most recent of which was VK Six TV Productions DAC.  A Certificate of Incorporation submitted in evidence by the respondent shows that VK Six Productions DAC was established on May 9th 2017.  A copy of a “Deal Terms / Start Form” shows that the complainant’s start date with that company was July 12th 2017.  Another letter shows that he was laid off for the second time during the production from April 6th until July 2nd 2018.  A third document is a letter to the complainant in which the line producer states that his employment will be terminated on December 14th 2018.

World 2000’s position is that VK Six TV Productions DAC was an entirely separate legal entity.  Mr Loughran acknowledged that, in accordance with s.41(16) of the Workplace Relations Act, I, as the adjudication officer, may exercise discretion to substitute one party for another where the wrong party has been named on the WRC complaint form.  However, referring to the decisions of the Labour Court in the cases of in Starrus Eco Holdings trading as Greenstar Wastepal v Calvin Partner[1]and Sylwia Wach v Travelodge Management Limited[2], he said that it is not appropriate to do so where the naming of the wrong respondent is not an administrative or clerical error.  Mr Loughran also referred to the decision of the Labour Court in an appeal of a decision of an adjudication officer in Patrick Boland v World 2000[3], where the Court held that the complainant did not produce evidence to establish a relationship between him and World 2000, and, for that reason, the appeal failed.

In his submission, Mr Loughran explained that “the film and television industry operates under a unique set of practices underpinned by a specific statutory regime.”  He referred to the requirement for production companies to establish designated activity companies, “DACs” for each individual production, and only that production.  Mr Loughran’s submission notes that the complainant was engaged on a number of film and TV productions on specified purpose contracts, the last of which was VK Six TV Productions DAC.  His employment ended on December 14th 2018, when the production of season 6 of Vikings ended. 

Mr Loughran submitted that “the application of the requirements under section 481 is in no way a circumvention of what would otherwise be employment rights of persons such as the complainant” and that “no employment relationship ever existed between the parties herein,” meaning between the complainant and World 2000.  Apart from the regulations around section 481 relief, it is necessary for a DAC to be established for each production, because each project is financed differently.  Financiers will only want to contract with a newly incorporated company that is not affected by any other business in the producer group or which might have pre-existing security registered over it.

The Complaint has been Submitted Outside the Statutory Time Limit

Mr Loughran said that the complainant was last engaged with VK Six TV Productions DAC, a company that shares a director with the respondent, and that his employment with that company ended on December 14th 2018.  As this complaint was lodged with the WRC on March 4th 2020, well over 12 months since the complainant last worked with VK Six, it has been submitted outside the time limit set out at s.41(6) of the Workplace Relations Acts and, for these reasons, Mr Loughran argued that it should not be heard.

Evidence of the Complainant

In his evidence, the complainant said that it is incredulous to think that World 2000 was not his employer.  He said that for 20 years that he worked with the company, he spoke to his employer.  He said that people who left IFWA are now working with the company, and that some of them started on “Valhalla” in December 2019.

The complainant said that he understood that during 2019, there was no films in production and he didn’t expect a call.  In December 2019, when production started back, he phoned the production manager.  When he got no reply, he phoned another producer, Annaliese O’Callaghan and he said that she asked him to send in a CV, which he found to be ludicrous.

When I asked him why he thinks he wasn’t called back, the complainant said that he believes that it was because the union asked for the service of its members to be recognised.

IFWA’s Position that World 2000 Entertainment Limited is the Employer

Ms Murray submitted that the fact that IBEC has entered an appearance on behalf of World 2000 is fundamental in determining the outcome of this case.  In the absence of sworn evidence, she argued that World 2000’s position must be rejected, as must any documents submitted by third parties who are not before this hearing.  Ms Murray argued that the documents are not properly in the possession of World 2000 unless they give sworn evidence to that fact.  The inclusion in their book of documents of a fixed-term contract issued to an employee who had an open-ended contract of employment is a breach of the complainant’s employment rights.  Ms Murray said that “this obfuscation is nothing more than an attempt by the employer to avoid his legal obligations, is prejudicial to the workers concerned and is misleading as to the actual facts of the relationship.”

Mr Loughran asserts that IBEC represents World 2000 Entertainment Limited and there is no suggestion that it represents VK Six.  Ms Murray submitted that this strategy provides a shield for the employer “to avoid the eye of equity.”[4]

In support of IFWA’s position that the correct employer has been impleaded, Ms Murray referred to the website of the Irish Film and Television Network which states that Mr Morgan O’Sullivan is a producer and the managing director of World 2000 Entertainment Limited.  The website refers to films in which World 2000 has been involved as a “co-producer” and these include each series of Vikings and many others that the complainant worked on before he worked on Vikings.

In his evidence, Mr Arkins referred to a meeting he attended in 2012 in the Grand Canal Hotel in Dublin.  He said that the meeting was attended by Morgan O’Sullivan and James Flynn.  A producer, Mr Séamus McInerney was also present.  Mr O’Sullivan is a director of World 2000 and is also a director of Metropolitan Films International Limited.  Until his death in February 2023, Mr Flynn was a co-director in Metropolitan Films International Limited with Mr O’Sullivan.  The heads of the construction unions were also at the meeting.  To bid for work from the United States, Mr O’Sullivan sought a pay reduction from construction employees of 15%.  IFWA subsequently agreed to accept a pay cut of 12.5% and the elimination of travel expenses worth €300 per week.  Mr Arkins said that the workers didn’t agree with VK Six to take a pay cut, but they agreed with their employer to take a cut for the making of Vikings.  Mr Arkins said that their understanding was that World 2000 was the entity looking for a new deal on pay.  He said, “World 2000 asked and we gave.”

At the hearing, Ms Murray submitted a number of documents in evidence, which, she said, support the union’s position that World 2000 was the complainant’s employer.

1.        Letter of April 24th 2012 from Morgan O’Sullivan to Denis Farrell of BATU

The first document is a letter dated April 24th 2012, from Mr O’Sullivan to Mr Denis Farrell, who, at the time was the deputy general secretary, of the Building and Allied Trades Union (BATU).  The letter is on paper headed “VK Productions Limited,” but with an address at Admore Studios and not Ashford.  The Ashford address is on the complainant’s “start form” for VK Six.  Mr O’Sullivan opens his letter as follows:

“Dear Denis,

I understand that you asked James Flynn to set out our understanding of the Local Agreement we plan to put in place for crew at Ashford on Vikings and on Octagon / World 2000 projects during 2012.

It is our strong preference that these arrangements are supported by the Group of unions and that we can continue to work together on a constructive and amicable basis with a view to contributing to Irish employment.”

The letter goes on to outline a six-point proposal for reducing the cost of labour, including a 12.5% pay cut and the elimination of travel expenses.  From the perspective of the issue under consideration here, Ms Murray said that, as far back as 2012, Octagon and World 2000 were considered to be the over-arching employer and Mr O’Sullivan and Mr Flynn were the controlling parties.

At paragraph 4 of this letter from VK Six Productions Limited to the group of unions, Mr O’Sullivan stated,

“All other custom and practice terms of the national shooting crew agreement and the construction sector (or any other over-riding agreements during this period) would apply.”

Ms Murray said that this refers to the 1991 Construction Agreement which, at clause 26(2), provided that,

“Members transferred from one employer to another by agreement with both of the Employers shall be regarded as being continuously employed for the purpose of determining length of service under this Clause…”

2.        Local Construction Agreement of June 9th 2017

The second document is a copy of a “Local Construction Agreement” which is said to be “revised as of 9th June 2017,” although the terms are said to apply from January 1st 2017.  This Agreement is on the headed notepaper of World 2000 Entertainment Limited and the directors are shown to be Bernard Somers, Marguerite Somers, Morgan O’Sullivan and Tom Palmieri.  The parties to this Agreement are World 2000 Entertainment Limited and IFWA.  At clause 15, the document states,

“This agreement is for U.S. Studio feature films (e.gg. “Leap Year”) and/or high-end U.S. network and/or cable television projects involving sound stages and construction builds (e.g. “Into the Badlands,” Vikings,” “Penny Dreadful”).  Lower budget feature films and lower budget TV are to be treated separately.  The parameters of what is considered to fall into this category is (sic) to be agreed.” 

The duration of this Agreement was to be from January 1st 2017 until December 31st 2020.  It was signed on June 9th 2017 by Mr Séamus McInerney “on behalf of World 2000 Entertainment Limited” and by John Arkins on behalf of IFWA.  Ms Murray provided a copy of an Agreement that mirrors the World 2000 Agreement, with exactly the same wording, but on headed notepaper of Metropolitan Film Productions Limited.  This version was signed by James Flynn and John Arkins.

3.        Letter from Annaliese O’Callaghan of World 2000 to IFWA, January 6th 2020

The third document provided by Ms Murray which, she submitted, identifies World 2000 as the complainant’s employer is a letter dated January 6th 2020 on the headed notepaper of World 2000 Entertainment Limited from Ms Annaliese O’Callaghan, head of production at that company.  The letter refers to Ms Murray’s request for a meeting to review the 2017 Agreement.  Ms O’Callaghan referred to Mr Flynn, a director of Metropolitan Film Productions, as “your previous primary contact on these matters” and she said that she has been authorised by Mr Flynn to correspond with Ms Murray.  Ms O’Callaghan informed Ms Murray that, due to work stoppages on the set of Vikings in September 2018, “we are now treating the Agreement as at an end.”

Ms Murray argued that the concluding of a collective agreement that governed terms and conditions of IFWA members from 2012 until 2020 demonstrates that there existed a legal employment relationship between World 2000 and IFWA members.  In support of this position, she referred to the decision of the Supreme Court in Goulding Chemicals Ltd v Bolger[5], where, considering the agreement between the company and the trade unions in that company, Mr Justice Kenny held that,

“It seems to me that the six-point agreement was intended to create legal relations and was intended to be a contract between the plaintiffs and the unions engaged in the negotiations…When an apparent agreement in relation to business relations is entered into the onus on the party who asserts that it was not intended to have legal effect is a heavy one.  In my opinion, the six-point statement and its acceptance created a valid enforceable contract between the plaintiffs and the unions who took part in the negotiations.”

Ms Murray said that Mr O’Sullivan clearly set out his ambitions in the six-point proposal he sent to the group of unions in April 2012.  These proposals related to Vikings, Octagon Films and World 2000 and Mr O’Sullivan was a director in each one.  The proposals were subsequently voted on and accepted by the complainant and from then on, they formed the basis of his contract of employment.

4.        Labour Court Recommendation LCR 22275

Ms Murray then referred to a recommendation of the Labour Court on October 10th 2020, arising from a dispute over the terms of the 2017 Collective Agreement.  The parties at the Court hearing were “Metropolitan Films / World 2000” and a Worker.  At the hearing, Metropolitan Films / World 2000 denied that they employed anybody.  The Court recommended that the parties engage in discussions to examine the operation of a profit-share scheme which was referred to in the 2017 Agreement.  A copy of a letter dated December 1st 2020 from IFWA to Mr Flynn refers to a conversation Ms Murray had with Mr Flynn on November 27th in relation to the Labour Court Recommendation and a letter from Mr Flynn to Ms Murray on that day.  It appears from this correspondence that Mr Flynn was speaking on behalf of World 2000 and Metropolitan Films.

In relation to the issue of the time limit for submission of this complaint, IFWA’s position is that, having been laid off on numerous occasions when production ended, the complainant was laid off on December 14th 2018.  There was nothing unusual about this and he expected to be called back to work when the next production started.  Ms Murray argued strongly that the termination letter issued to the complainant on December 7th 2018 was a notice of lay-off and that these notices were issued regularly, and sometimes rescinded on the day they were issued, when the schedule of work changed.  Construction workers got these letters at Christmas and each time there was a break in production.  They were called back to work when production started up.  The complainant wasn’t called back in December 2019, when production started on “Valhalla,” a sequel to Vikings.  On his behalf, Ms Murray submitted this complaint to the WRC on March 4th 2020.

IFWA’s Position that World 2000 Entertainment Limited was the Employer

On the form submitted to the WRC on behalf of the complainant, IFWA states that his former employer was “World 2000.”  At the hearing of this complaint on May 15th 2023, on application by Ms Murray, Mr Loughran agreed that the respondent’s name could be amended to show that World 2000 Entertainment Limited is the name of the respondent against whom this complaint was submitted.

In 2012, World 2000 Entertainment Limited and Octagon Films reached separate “Local Construction Agreements” with IFWA.  The terms of the agreements established the pay and conditions of IFWA members and they were revised in 2017.  Arising from these agreements, it was reasonable for IFWA members to conclude that, depending on which film they were working on, the producer company was either World 2000 or Otagon Films (which changed its name to Metropolitan Films International Limited in 2015).  The complainant who is the subject of this hearing believed, reasonably, in my view, that his employer was World 2000.

The belief among IFWA members that World 2000 was their employer is consistent with the efforts of the director of World 2000, Morgan O’Sullivan, to conclude a deal on pay and conditions in 2012.  The nature of the terms of the agreements is such that they became contractual terms of employment.  Why would any person who is not the employer of the relevant workers engage in negotiations on terms and conditions?

When they reached an agreement with Mr O’Sullivan in 2012, and again in 2017, and, when the agreement was formalised on the headed paper of World 2000, any reasonable person reading the document would assume that World 2000 was the employer.

When the producer, Annaliese O’Callaghan wrote to Liz Murray of IFWA in December 2020, she wrote on behalf of World 2000, on the instructions of James Flynn, as the employer against whom industrial action had been taken in 2018.

As late as February 4th 2021, James Flynn wrote to Liz Murray arising from a dispute between them concerning the profit-sharing arrangement proposed in the 2012 and 2017 agreements.  He said that the profits were to be “derived from proceeds generated by the exploitation of the qualifying project, as excluding serviced projects and as being limited to projects owned and developed by Octagon and World 2000.”  Here again, the significant parties are Octagon and World 2000, the directors of which conducted themselves as if they were the employers of the workers.

There is an abundance of publicly available information which shows that World 2000 is the producer of the six series of Vikings and that, when it was in production, the series employed in excess of 700 people. 

Despite this reasonable belief on the part of IFWA, I am satisfied that World 2000 was not the complainant’s employer, but that he was employed by Metropolitan Films International Limited which was previously known as Octagon Films and Octagon Films International Limited.  My reasons for reaching this conclusion are as follows: 

The website of the Companies Registration Office (CRO) provides a listing for Metropolitan Films International Limited and its subsidiaries (collectively referred to as the “Group”).  In the financial statement of that business up to April 30th 2018, VK Six TV Productions DAC is listed as one of 16 subsidiary companies.  The last film on which the complainant worked was Vikings 6 and he finished up on that production in December 2018. 

The financial statements on file in the CRO for World 2000 Entertainment Limited state that,

“The nature of the company’s business is such that it makes significant initial investments in the development of motion pictures and television film projects, the recoverability of this is dependent upon the profitable exploitation of these projects.”

The financial statements for World 2000 for every year up to the end of June 2022 indicate that the company has no employees. 

The financial accounts for Metropolitan Films International Limited, up to April 30th 2018, shows that the average number “employed by the Group in its production company subsidiaries” was 1,301, of which, 1,283 were employed in production.  The report shows that the cost of wages and salaries for 2018 was just under €40 million.  The report also notes that,

“The above employee numbers are the average monthly number of employees as calculated by reference to Section 371(5) of the Companies Act 2014.  The nature of the Group’s trade resulted in the majority of employees being contracted for a condensed period.  Therefore, a significantly higher number of employees than the average reported were employed by the Group.”

Based on the filings in the CRO and the submission of IFWA, I am satisfied that, until April 30th 2018, when he was registered as an employee of VK Six TV Productions DAC, the complainant was one of 1,301 employees of “the Group” of companies comprising Metropolitan Films International Limited and its Subsidiaries.  He continued to work on Vikings 6 until December 2018 and I am satisfied that he was one of the 332 production staff employed by the Group in the financial year 2019.  Over the course of these hearings, it became apparent that, for most of 2019, no films were in production and this is the reason for the difference in the numbers employed between 2018 and 2019.  The financial report for the Group for 2022 which Ms Murray included in her submission shows that by 2022, the employee numbers had risen to 785, of which, 783 were engaged in production. 

Contrary to the respondent’s assertion that it was necessary to assign the complainant to a succession of qualifying companies, the 2019 Film Regulations provide that workers must be employed in accordance with section 9(2) of the Fixed-term Work Act, meaning that they must be employed on a continuous basis and not on a succession of fixed-term contracts.  A qualifying company, because it “exists solely for the purpose of the production and distribution of one film,” cannot provide continuous employment and therefore, I am satisfied that the only rational and lawful employment relationship is between the complainant and the producer company, in this case, Metropolitan Films international Limited and Subsidiaries, collectively referred to in the Directors’ Reports as “the Group.”

Error in the Naming of the Respondent

Section 39 of the Organisation of Working Time Act 1997 (“the OWT Act”) provides that I, as the adjudicator (the “relevant authority” - subsection (1)) have certain powers to deal with difficulties arising from a respondent being improperly named in a decision given under certain statutes including the Unfair Dismissals Act 1977 and the Minimum Notice and Terms of Employment Act 1973 or, on a complaint referral form.  Subsection (2) and (3) of this section set out the parameters for the amendment of a decision already issued.  Subsection (4) provides a mechanism for a complainant to issue fresh proceedings against the correctly named respondent, even where the statutory time limit for initiating a complaint has expired:

“(4) If an employee wishes to pursue against a person a claim for relief in respect of any matter under an enactment or statutory instrument referred to in subsection (2), or the Table thereto, and has already instituted proceedings under that enactment or statutory instrument in respect of that matter, being proceedings in which the said person has not been given an opportunity to be heard and—

(a) the fact of the said person not having been given an opportunity to be heard in those proceedings was due to the respondent’s name in those proceedings or any other particular necessary to identify the respondent having been incorrectly stated in the notice or other process by which the proceedings were instituted, and

(b) the said misstatement was due to inadvertence,

then the employee may apply to whichever relevant authority would hear such proceedings in the first instance for leave to institute proceedings against the said person (“the proposed respondent”) in respect of the matter concerned under the said enactment or statutory instrument and that relevant authority may grant such leave to the employee notwithstanding that the time specified under the said enactment or statutory instrument within which such proceedings may be instituted has expired:

Provided that that relevant authority shall not grant such leave to that employee if it is of opinion that to do so would result in an injustice being done to the proposed respondent.“

At the hearing, IFWA’s position was that the name of the respondent was World 2000 Entertainment Limited, and the only application was to substitute this title for “World 2000.” 

Conclusion

Aside from the provisions of section 39(4) of the OWT Act, there is precedent for a relevant authority to amend the name of a respondent where the wrong party was named as a result of a clerical or administrative error.  I note the decision of the Labour Court in the appeal of Auto Depot Limited and Vasile Mateiu[6], where the Court found in favour of Mr Mateiu’s request to amend the name of the respondent on the complaint form.  Reflecting the decision of Mr Justice Hogan in O’Higgins V University College Dublin and Another[7], the Court concluded that to decline the complainant’s request would amount to a “grossly disproportionate response” and found that,

“…the erroneous inclusion of ‘Auto Depot Tyres Ltd’ on the WRC complaint form to be no more than a technical error.  The Court is fully satisfied that the Respondent’s name can simply be amended on the paperwork to reflect its correct legal title, that of ‘Auto Depot Ltd.’”

It is my view that there is some divergence regarding the facts in that case compared to the case I am considering here.  Based on this finding, I must conclude that, by asserting that World 2000 Entertainment Limited is the employer, the wrong respondent has been named on the complaint form.  In previous findings, where the union has named “Metropolitan Film Productions Limited” as the respondent, I have amended the complaint form to show that the correct name of the employer was “Metropolitan Films International Limited.”  The error in the instant case is not that the employer has been incorrectly named, but, that that a separate legal entity has been named.  As this “inadvertence” has been legislated for under s.39(4) of the Organisation of Working Time Act, it is my view that I should not amend the name of the respondent and that the correct respondent must be impleaded.

The respondent’s position is that “the employee relationship between the complainant and VK Six TV Productions DAC ended on December 14th 2018” and that his complaint has been submitted outside the statutory time limit set out at section 41(7) of the Workplace Relations Act 2015 (“the 2015 Act”).  Ms Murray argued that the complainant was laid off between December 14th 2018 and December 2019 and that he could not have known he was dismissed until he wasn’t called back when construction work commenced on a film called “Valhalla.”  

On December 14th 2018, the complainant finished up working on a TV series, “Vikings 6,” produced by VK Six TV Productions DAC, one of Metropolitan Films International Limited’s group of companies.  We know that the respondent made no films during most of 2019. 

The issues for consideration are: 

1.       Was the complainant laid off between December 14th 2018 and December 2019?

2.       If he was laid off, when was his employment terminated?

3.       With the date of termination established, are his complaints within the statutory time limit at s.41(6) and (8) of the 2015 Act?

The concept of “lay-off” is defined at s.11(1) of the Redundancy Payments Act 1967 as follows:

(1)  Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and -

(a)  it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b)  the employer gives notice to that effect to the employee prior to the cessation, that cessation of employment shall be regarded for the purposes of this Act as lay-off.

The facts show that, over a period of seven years of employment with Metropolitan Films, and before that, with Octagon Films, the complainant’s employment ceased intermittently when there was no work for him to do.  Each time production ended, he received a letter from the construction manager stating something along the lines of “production is now coming to an end and we have no further work.”  It is evident that, over the years, the cessation of work was temporary, because the complainant was called back when work was available again.  It is apparent that the complainant and his employer co-operated based on the expectation that, when there was no work, his employment would cease, and when work was available again, he would resume working on a new film.  While s.11(1)(b) above requires the employer to give notice that the cessation will not be permanent, it has generally been held that this is not essential and notice can be implied from the practice in the workplace and the understanding of the parties.

I am satisfied that, on December 14th 2018, the complainant was laid off with the same letter and in the same manner as he had been in previous years.  While his employment ceased, he was not dismissed and he had a legitimate expectation that he would be called back to work when construction started on a new film.  Although no films were in production in 2019, IFWA, represented by Ms Murray and the shop steward, John Arkins, were in talks with the late Mr Flynn about terms and conditions for their members.  The talks ended around April 2019, when Mr Flynn became ill. 

In support of the complainant’s case that he was laid off for 12 months, Ms Murray referred to the 2011 decision of the Labour Court in Beary v the Revenue Commissioners (footnote 5).  Between 2004 and 2008, Mr Beary was employed by the Revenue Commissioners as a temporary clerical officer.  When he was not called back to work after November 1st 2008, he argued that, as he had been employed for more than four years on a succession of fixed-term contracts, in accordance with s.9(2) of the 2003 Act, he was entitled to a contract of indefinite duration.  Finding against Mr Beary, the Court concluded that, in accordance with s.7(1) of the 2003 Act, there were objective grounds for not offering him a contract of indefinite duration, those grounds being the requirement for the Revenue Commissioners to have recourse to a panel of relief clerical officers. 

From the point of view of the instant case, the important outcome from Beary is not the Court’s finding in relation to him not being entitled to a contract of indefinite duration, but, its examination of the meaning of “continuous fixed-term contracts,” used at s.9(2) of the 2003 Act, and the phrase “successive fixed-term contracts” used in clause 5 of Council Directive 99/70/EC concerning the Framework Agreement on Fixed-term Work.  Having considered that the objective of section 5 of the Directive is to prevent the abuse of fixed-term contracts, the chairman, Mr Duffy, concluded that, to interpret the meaning of “continuous fixed-term contracts” at s.9(2) of the 2003 Act as meaning successive and continuous was incompatible with and would limit the rights enshrined in the Directive: 

“There can be no doubt that on a literal construction of the language used in the Framework Agreement and the Act there is incompatibility.  While all periods of employment which are continuous are necessarily successive, not all employment which is successive is necessarily continuous.  Prima facie, at least, s.9 is, therefore, unduly limited in its ambit in that it excludes from the protection of the Act successive periods of employment which are not continuous.”

In support of this conclusion, Mr Duffy referred to the decision of the Court of Justice of the EU (CJEU) in case 2-212/04 Adeneler and others v Ellinkos Organismos Galaktos[8], which concluded that a provision in Greek law in which fixed-term contracts separated by more than 20 days of lay-off were not continuous was incompatible with clause 5 of the Directive.  The decision of CJEU in case C364/07 Spryidon Vassilakis and others v Dimos Kerkyras[9], held that fixed-term contracts separated by less than three months can be regarded as successive.  Mr Duffy found that this is authority for the proposition that a member state may provide in domestic law that contracts separated in time by more than three months may not be regarded as successive.  While it was open to the Oireachtas to enact such a provision, it did not do so and Mr Duffy concluded that it was not open to the Labour Court to import such a provision into the statute.

Having reached this conclusion, Mr Duffy noted that the statutory provision regarding the definition of continuous employment is at s.9 of the 2003 Act and the First Schedule of the Minimum Notice and Terms of Employment Act 1973.  This provides that the service of an employee is deemed to be continuous unless they are dismissed or voluntarily leave their job.  S.3 of the Schedule provides that,

“A lay-off shall not amount to the termination by an employer of his employee’s service.”

On similar grounds to the argument put forward by Mr Loughran on behalf of the respondent, counsel for the Revenue Commissioners in Beary argued that each time his fixed-term contract came to an end, he was dismissed.  Mr Duffy found that such a literal interpretation of the First Schedule of the Minimum Notice and Terms of Employment Act would mean that there could be no continuity between fixed-term contracts unless the expiry of each was followed by immediate renewal.  He held that “such a result would be at variance with the object pursued by the Directive and could not be adopted.”  He went on:

“The alternative and better approach is to construe the First Schedule of the 1973-2005 Act so as to produce the result envisaged by the Directive.  In that regard, it would seem that the concept of successive employment arises where a person is engaged to do the same job intermittently.  Hence it could be reasonably said that where a person’s employment is terminated because there is no longer work available for him or her to do, and it is envisaged at the time of the terminations that his or her service will be required again in the future, and they are in fact re-engaged, the employment could be regarded as continuous.” 

The complainant was engaged to “do the same job intermittently” over a period of 18 years, being laid off each time construction finished on the film to which he was assigned.  Based on the definition of continuous service at paragraphs 1-3 of the First Schedule of the Minimum Notice and Terms of Employment Act 1973 and, taking my authority from the decision of the Labour Court in Beary, that, “a lay-off, regardless of its duration, does not break continuity of service,” I am satisfied that, between December 14th 2018 and December 1st 2019, when he was not called back to work, the complainant was laid off and that the effective date of his dismissal is December 1st 2019.  As he submitted these complaints to the WRC on March 4th 2020, they have been submitted within the statutory time frame.

While I have concluded that this complaint has been submitted within the statutory time frame, I have also concluded that the wrong respondent has been named on the complaint form.  For this reason, I decide that I have no jurisdiction to proceed with an enquiry into a complaint against the named respondent.

Error in the name of the respondent