Complainant

Respondent

Parties

David Brady

Metropolitan Films International Limited

Representatives

Liz Murray, Irish Film Workers Association

Nichola Harkin, Irish Business and Employers Confederation

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00046821-001

25/10/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00046821-002

25/10/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00046821-004

25/10/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00046821-005

25/10/2021

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

CA-00046821-007

25/10/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00046821-008

25/10/2021

In his evidence, Mr Brady said that he commenced employment as an apprentice painter on the construction of sets with Metropolitan Films International Limited on July 27th 2015.  He assumed that he completed his apprenticeship under the guidance of a master painter who he named at the hearing.  He was dismissed on August 23rd 2021.  A payslip included in the respondent’s book of papers shows that, at the time of his dismissal, the complainant’s hourly rate was €27.71 and he worked 52.5 hours a week plus six hours of regular overtime.  The complainant had an injury at work and he claims that he wasn’t able to take up employment again until August 2022.  He has submitted complaints concerning his hours of work, holidays, wages and a claim that his employer failed to provide him with a written statement of his terms and conditions of employment.  He also claims that he was dismissed without notice and that his dismissal was unfair.

Opening her submission for the respondent, Ms Harkin said that Mr Brady was never employed by a company named or trading as “Metropolitan Films International Limited.”  She said that he was “engaged as a PAYE employee by Moonhaven S1 Productions DAC” and that his employment “commenced and terminated on the 23rd of August 2021.”  As a preliminary issue, she argued that Mr Brady “cannot pursue his claims against the Respondent, with whom he never had any employment relationship.”

Before considering Mr Brady’s substantive complaints, I will address the preliminary issue raised by Ms Harkin, that Mr Brady was not employed by Metropolitan Films International Limited and that his complaints are against the wrong respondent. 

While the parties are named in this Decision, I will refer to Mr Brady as “the complainant” and to Metropolitan Films International Limited as “the respondent.”

It is the respondent’s case that the complainant has impleaded the wrong employer and that, for this reason, I have no jurisdiction to hear his complaints.  Ms Harkin 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], she said that it is not appropriate to do so where the naming of the wrong respondent is not an administrative or clerical error.  Ms Harkin 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.  Finally, on this issue, Ms Harkin cited the decision of the Labour Court in Hickey v Metropolitan Film Productions Limited[4]where the Court concluded that there was no evidence before it to establish that the complainant was ever in the employment of the respondent.

In her submission, Ms Harkin explained that the television and film industry “operates under a unique set of practices” underpinned by s.481 of the Taxes Consolidation Act 1997.  Originally, the “section 481” scheme was an incentive to individuals who could avail of tax relief by investing in approved film projects.  In 2015, the investment relief model changed and section 481 relief now operates as a corporation tax credit.  The producer company can avail of credit of up to 32% of the eligible approved cost of production of a film.  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.  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.  Ms Harkin submitted that Mr Brady “was last engaged by Moonhaven DAC” and that he was “employed solely for the purpose of working on that series.”  She said that no commitments were made regarding employment on any future production.

Ms Harkin said that “Moonhaven was an entirely separate legal entity to the Respondent and was subject to the requirements of Section 481.”  She said that the complainant’s employment with Moonhaven commenced and was terminated on August 23rd 2021.  In support of this assertion, a letter on headed notepaper of Moonhaven S1 Productions DAC was included in the respondent’s book of papers at the hearing.  The letter is addressed “to whom it may concern” and states that the complainant was employed as a set decorator painter with Moonhaven S1 Productions DAC until August 23rd 2021.

Ms Harkin reiterated that the process for claiming s.481 relief requires the establishment of a qualifying company for each film project.  Moonhaven S1 DAC was set up to produce Moonhaven and a s.481 certificate was applied for and obtained from the Revenue Commissioners.  The certificate was granted when Revenue was satisfied that the film was a qualifying film and that the production satisfied all the necessary criteria.  The Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media also had an input into the procedure in that the Department validates the cultural content of films submitted for certification.  The contribution the film will make to the development of the industry and the expression of Irish culture are key parts of the certification process.

Ms Harkin 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 Metropolitan Films International Limited.  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. 

Ms Harkin concluded her submission on this preliminary issue by asserting that no employment relationship existed between the complainant and the respondent.  The respondent does not employ full-time production crew such as painters, electricians or actors due to the very uncertain nature of the workstream which can fluctuate from year to year.  Ms Harkin submitted that “it is entirely appropriate to use discrete contractual engagements which are not contracts of employment as once the production concludes there is no further need for the employee or the contractor to do any further work.”

In her submission, Ms Murray said that, in contemplation of a referral of his complaints to the WRC, on October 21st 2021, the complainant submitted a data subject access request to the respondent.  Four weeks later, he received a response from the office manager of Metropolitan Films International Limited, concerning his employment in five “designated activity companies:” “Penny Dreadful,” “Into the Badlands,” “The Last Duel,” Disenchanted” and “Moonhaven.”  Ms Murray asserted that the data holder, and the only entity authorised to hold the complainant’s records is Metropolitan Films International Limited, who was his employer.

Ms Murray asked me to have regard to the information provided on the website of Metropolitan Films International Limited which states,

“With over 20 years of experience in film and television drama production, Metropolitan Films, through its international and production entities, develops, produces and provides production services to international film and television projects that locate in Ireland.”   

Ms Murray asked, “what would the reasonable or ordinary person make of this statement?” claiming that it is clearly intended to mean Metropolitan Films International Limited, and Metropolitan Film Productions Limited.  Metropolitan Film Productions Limited states on its website that it is a sister company of Metropolitan Films International Limited.  Ms Murray said that the only inference that can be drawn is that all the companies in the Group are inextricably linked and any suggestion to the contrary is a misstatement.

Ms Murray referred to the following statement on the same website:

“Since 2015, Metropolitan Films International has operated as a qualifying Irish Producer Company under the aegis of the Section 481 corporation film tax incentive.  Projects it has been commissioned to produce since then include Vikings 4, 5 and 6 for MGM, Penny Dreadful 3 for Showtime, Greta, directed by Neil Jordan for Sidney Kimmel Entertainment distributed by Universal, Tomato Red for Indican and Take 5, Into The Badlands 2 and 3 for AMC, and Valhalla for MGM and Netflix.

International co-productions include Calvary, starring Brendan Gleeson, Dorothy Mills, My Boy Jack and The Tudors 1 to 4.”

Ms Murray said that, before 2015, the employer was Octagon Films Limited and that it changed its name in or about 2015 to “Metropolitan Film Productions Limited.”  She said that the film, “Dorothy Mills,” was produced in 2008 by Octagon Films, the directors of which were James Flynn and Morgan O’Sullivan.  “Calvary” was produced in 2014, although Ms Murray indicated that it does not appear to have been established as a qualifying company.  “The Tudors 1 to 4” was produced between 2007 and 2011 by James Flynn and Morgan O’Sullivan.

Ms Murray referred to the financial report for the year ending April 30th 2022 for Metropolitan Films International Limited and its subsidiaries (collectively referred to as the “Group”).  She provided a copy of this document at the hearing and she asked me to note that the company’s directors are credited as producers or executive producers on the films on which the complainant worked.  Ms Murray said that it is clear from the financial reports that all the DACs are subsidiaries of the parent company, notwithstanding that some pre-date Metropolitan Films International Limited and that all are associated for the purpose of employment legislation.

The complainant is listed on the film credits for the films he worked on.  Three other named personnel featured on the company’s website under the heading “Our Team” are also credited on the films on which the complainant worked.  The respondent seeks to imply that the complainant was never employed by them; however, Ms Murray posed the question, why certain people in “above the line grades survived each DAC” and those below the line do not?  Ms Murray referred to the Tax and Duty Manual for s.481 claims which permits the producing company to claim ongoing HR and training costs for “crew.”  Ms Murray asserted that the term “crew” includes people like the complainant in the role of set painter and not administration or management personnel.

Ms Murray submitted that the claims made by the respondent in their submission are inadmissible, because they are not supported by sworn evidence.  She said that, if the claims were true, they would stand up to examination.  She said that the overwhelming evidence is that the DACs are part of a Group and to suggest otherwise defies logic.  Ms Murray submitted that the complainant is entitled to a standard of justice that is not inferior to that which applies in a court of law.  The burden of proof is on the respondent to show that his dismissal was not unfair and if the respondent refuses to give evidence, then, the burden of proof is not discharged and the matters stated in the complainant’s claim are proven.

The Name of the Employer

In her submission, Ms Harkin said that Metropolitan Films International Limited was established in 2015 as an Irish producer company of film and television projects.  I note that the register of the Companies Registration Office (CRO) shows that Octagon (LR) Films Limited, with a registered address at Ardmore Studios, Bray, County Wicklow, was incorporated in April 2013 with James Flynn and Ronan Flynn as directors.  Filings to the CRO show that, in May 2013, Octagon (LR) Films Limited changed its name to Octagon Films International Limited and, in January 2014, Morgan O’Sullivan joined James Flynn and Ronan Flynn as directors.  On June 9th 2015, the company changed its name to Metropolitan Films International Limited.

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…”

Sadly, James Flynn died in February 2023 at the age of 57.  For the previous 25 years, he and his co-directors were the driving force behind a raft of acclaimed television and film productions that helped to establish Ireland as a film-making location. 

In the financial report for the year ending April 30th 2022 for Metropolitan Films International Limited and its subsidiaries (collectively referred to as the “Group”) which was presented at the hearing by Ms Murray, it is stated that, in the 12 months to the end of April 2022, the Group employed 785 employees, of which, 783 were engaged in production.  The aggregate payroll cost is shown as just under €54m.  The report shows that Moonhaven S1 Productions was one of 16 wholly owned subsidiaries of Metropolitan Films International Limited.

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.”

The complainant’s evidence is that, after he commenced with the respondent in 2015, he worked on three seasons of “Penny Dreadful” and on seasons two and three of “Into the Badlands.”  He was laid off for all of 2019, when there was no work available and, in January 2020, he returned to work with the respondent on the production of “The Last Duel.”  In March 2021, he was assigned to work on “Disenchanted” and in August that year, he was to start work on “Moonhaven.”  I am satisfied that since his commencement in July 2015 until he was dismissed in August 2021, the complainant worked with eight designated activity companies:

1.       PD Film Productions Limited (“Penny Dreadful”);

2.       PD Two Film Productions Limited;

3.       PD Three Film Productions Limited;

4.       Badlands Television Productions DAC;

5.       Badlands Three Televisions Productions DAC;

6.       Argentan Productions DAC (“The Last Duel”);

7.       Clocktower Productions DAC (“Disenchanted”)

8.       Moonhaven S1 Productions DAC

Each of these companies is or was listed as a subsidiary of Metropolitan Films International Limited.  PD Film Productions and PD Two Film Productions were dissolved in 2016.  PD Three was dissolved in December 2020.  Badlands Television Productions DAC was dissolved in December 2022.  Argentan was dissolved in December 2023.  The status of the remaining DACS is indicated as “normal.”  The directors of the DACs are or were Morgan O’Sullivan and the late James Flynn.  Until his death on February 11th 2023, James Flynn was a director of Metropolitan Films International Limited, with Morgan O’Sullivan.

Based on the evidence of the complainant and the report filed in the CRO for the financial year ending on April 30th 2022, and I am satisfied that, until he was dismissed on August 23rd 2021, when he was registered as an employee of Moonhaven S1 Productions DAC, the complainant was one of 785 employees of “the Group” of companies comprising Metropolitan Films International Limited and its Subsidiaries.  I am further satisfied that he was an employee of the respondent from 2015 and that he was laid off intermittently when no work was available. 

The Effect of Section 481 of the Taxes Consolidation Act 1997

Section 481 of the Taxes Consolidation Act 1997 (“the 1997 Act”) was an acknowledgement by the government of the importance of film making to the promotion of Irish culture, the development of tourism and the growth of jobs.  The 1997 provisions were amended by section 26 of the Finance Act 2018.  The Revenue Commissioners published a series of Film Regulations governing the application for a section 481 certificate with the latest issued in Statutory Instruments (SI) 119 and 358 of 2019.  SI 358 is concerned with an uplift in tax relief for films made in the regions and the main regulations are set out in SI 119 of 2019.

In her submission on behalf of the respondent, Ms Harkin explained that “section 481 relief” was intended to promote investment in film production by granting individual tax-payers relief on their investment.  Until December 31st 2014, the relief was available as a personal tax credit to investors.  Section 481 is now referred to as the film tax credit and is only available to producer companies in the film production industry.  The financial statement for 2022 shows that, in that year, the Group received €75,543,862 in corporation tax credit under section 481.   

The website of the Department of Tourism, Culture, Arts, Gaeltacht, Sports and Media (“the Department”) has a useful Guidance Note on the Regulations and on the procedure for applying for relief.[5]   The Regulations provide that a producer company applying for section 481 relief must, in the first instance, apply to the Minister for Tourism, Culture, Arts, Gaeltacht, Sports and Media (“the Minister”) for a qualifying certificate.  When the Minister issues a certificate in relation to a qualifying film, and all the other provisions of section 481 have been complied with, a producer company may make a claim for film corporation tax credit.  The relief may be claimed against the company’s corporation tax liabilities and is given at 32% of the lower of:

a) Eligible expenditure

b) 80% of the total cost of production, or

c) €70,000,000

We know that, to avail of this relief, a qualifying company must be established so that the cost of production is ring-fenced and can be audited by the Revenue Commissioners.  Section 481 of the 1997 Act defines a qualifying company as a company which –

(a) is incorporated in the State,

(b) is resident in the State and not resident elsewhere,

(c) exists solely for the purposes of the production and distribution of only one qualifying film, and

(d) does not contain in its name registered under either or both the Companies Acts, 1963 to 1990, or the Registration of Business Names Act, 1963, the words “Ireland”, “Irish”, “Éireann”, “Éire” or “national.”

From the perspective of the issue under consideration here, the important component of this definition is sub-section (c), that the qualifying company exists solely for the purpose of the production and distribution of one film. 

“Producer company” is not defined in the 1997 Act, however, Regulation 2 of SI 119 of 2019 states that,

“film group” means the producer company, the qualifying company and all businesses that are regarded as partner or linked business of either company[.]”

At the hearing on June 26th 2023, Ms Murray presented a copy of Revenue’s Tax and Duty Manual for companies applying for s.481 relief[6].  Section 3.3 deals with common queries on establishing the value of costs incurred for which relief can be claimed.  Under the heading, “employee costs,” the following example is provided:

“A producer company has a number of full-time crew on its payroll, whose services are provided to each of its qualifying companies as required.  In calculating the amount that can be charged for their services regard should be had to both the salary of each crew member, but also the costs associated with having full time employees (e.g. HR costs, hiring costs, training costs etc.) The value at which the crew are recharged should take account of the ongoing costs of employment.”

It is apparent from this that the position of Revenue is that the producer company provides the services of its full-time employees to the qualifying companies when they are required.  The cost of labour is “recharged” to the qualifying company and included in the costs that qualify for s.481 relief in relation to a specific film or TV production.  The qualifying company is a transient, finite entity, and the producer company is the constant employer.      

I am satisfied that the complainant was a full-time employee of Metropolitan Films International Limited from 2015 and that, on August 23rd 2021 he was dismissed when he was assigned to Moonhaven S1 Productions DAC.  I am satisfied that he was laid off intermittently between assignments and that each of the eight qualifying companies to which he was assigned associated companies and components of the Group known as Metropolitan Films International Limited. 

In accordance with the European Commission Communication on State aid for films and other audio-visual works, the Revenue Commissioners publishes the names of the recipients of section 481 tax credit.  In the documents she submitted at the hearing, Ms Murray included a copy of the list of companies who have benefited from section 481 credit.  This shows that, between 2016 and 2022, Metropolitan Films International Limited availed of tax relief of more than €150 million in respect of 25 individual productions.  Included in the list of productions are the films that the complainant worked on between 2015 and 2021.

To support their case that the complainant was not employed by them, the respondent relies on the Revenue requirement for a producer company to establish a qualifying company to apply for tax credit for each individual film, arguing that “this is in no way a circumvention of employment rights…”  It would be an entirely irrational outcome if, as a consequence of the government’s policy to provide Exchequer funding to the film industry, employees were deprived of security of employment.  To this end, I have examined the 2019 Regulations and the Department’s Guidance Note (footnote 6).  It is apparent to me that the Regulations are intended as compliance measures to ensure that workers employed in film production have the same entitlements under employment law as employees in all other sectors of business. 

In the directors’ report for 2022 (and previous years), under the heading, “Principal risks and uncertainties,” the directors note that,

“A principal risk which could materially and adversely affect the Group’s future operating profit or financial position is compliance with the conditions set out in certificates issued under Section 481 Taxes Consolidation Act,1997 (as amended).”

The report gives no indication which condition or conditions of the section 481 certificate presents a risk and it does not state that they have not complied with the conditions. 

The Guidance Note refers to the application process for a section 481 certificate comprising “Tabs A to M.”  Section 4 of Tab A requires the producer company to,

“…demonstrate how, in promoting, developing and enhancing culture, the film acts as an effective stimulus to film making in the State through, among other things, the provision of quality employment and training opportunities.”

I agree with Ms Murray’s assertion that quality employment means secure employment.  This is underlined by the condition at Tab M of the application process:

“Tab M is an Undertaking in respect of quality employment. It should be completed and signed by a director of the producer company and a director of the qualifying company.

Quality employment is employment which complies in all material aspects with all applicable laws including but not limited to all obligations in the field of environmental, social and employment law that apply at the place where the Services are provided, that have been established by EU law, national law, and collective agreements in particular the provisions of the following as may be amended from time to time:

i. the Terms of Employment (Information) Acts 1994 to 2014

ii. the Safety, Health and Welfare at Work Act 2005

iii. the Protection of Employees (Fixed-Term Work) Act 2003 and in particular section 9(2) thereof

iv. The Organisation of Working Time Act 1997

v. The Employment Equality Acts 1998 to 2011

vi. The Equal Status Acts 2000-2015

vii. The Payment of Wages Act 1991

viii. The Protection of Young Persons (Employment) Act 1996

Quality employment also requires that the employer is in compliance with employment, remuneration, taxes, immigration and work permits for all personnel and has in place written policies and procedures on Grievances, Discipline and Dignity at work (including harassment, bullying and equal opportunity) as well as ensuring that any Workplace Relations Commission findings relating to the employer and to any related companies are being followed.

In her submission, Ms Murray noted the reference to s.9(2) of the Protection of Employees (Fixed-term Work) Act 2003 which is listed at sub-section iii above and which provides that,

(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. 

It is apparent that Metropolitan Films International Limited and its subsidiaries is a Group comprising, in different years, a varying number of qualifying companies, each of which is set up to produce one film and one film only, so that the producer company (as distinct from the qualifying company) can apply for section 481 tax credit in respect of each individual film. 

The Group’s financial report for 2022 lists 12 subsidiaries and three new subsidiaries incorporated in the 2022 financial year.  The report for 2021 lists 17 subsidiaries, of which, 12 were listed in 2022.  This demonstrates the short life of the subsidiaries and the inability of these companies to comply with the conditions of the section 481 certificate regarding quality employment.

Conclusion

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 s. 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.”  I am satisfied therefore, that, by identifying his employer as Metropolitan Films International Limited, the complainant has not made an error, and that the correct respondent has been impleaded. 

At the conclusion of the submissions on the correct name of the respondent, Ms Harkin asked me to issue a decision on this matter in the first instance.  Based on the respondent’s approach not to present any evidence in response to the complaints, I see no merit in this course of action.  I intend now to set out my findings on the substantive complaints, based on the uncontradicted evidence of the complainant.

The complainant said that he commenced working for the respondent in 2015, as a stagehand on the production of the first season of “Penny Dreadful.”  He earned €21.25 per hour.  When season two was in production, he said that he was offered an opportunity to become an apprentice painter and he decided to take up this offer, even though he would be on a lower rate of pay compared to the rate paid to a stagehand.  In her book of documents at the hearing, Ms Murray included a copy of a “start form” for the third season of “Penny Dreadful” which shows that the complainant was paid €8.65 per hour. 

The complainant said that he worked on the three seasons of the production of “Penny Dreadful.”  Each season had 12 episodes which took about a year to produce.  When that series was finished, he went directly to work on season 2 of “Into the Badlands.”  Season 1 was not produced in Ireland.  He then worked on season 3.  He was still paid what he thought was the apprentice rate of pay, €11.95 per hour. 

The respondent had no films in production in Ireland during most of 2019 and the complainant wasn’t rostered for any work.  In January 2020, he started working on the production of “The Last Duel” with a DAC called “Argentan.”  For this series, he was employed and paid as a stagehand.  He finished up on “The Last Duel” in October 2020 and returned to work on March 11th 2021 on a film called “Disenchanted,” for a DAC called “Clocktower Productions.”  While he was working on “Disenchanted,” the complainant said that he asked the construction manager about completing his apprenticeship and he replied, “we don’t do apprenticeships here.”  By the time he finished up working with the respondent, he was a stagehand, back on the stagehand rate of €27.71 per hour.

In August 2021, while he was working on “Disenchanted,” the complainant injured his knee.  He was back at work after a week’s absence and on Friday, August 20th, he said that the construction manager told him that, the following Monday, he was to move to a different production, “Moonhaven” where he was to work painting props in the art department.  This was a move out of construction.  The complainant said that he went to work at 7.30am on Monday, August 23rd and he had an argument with the construction manager about the fact that he was assigned to the props department.  Arising from this argument, he said that he was “let go” before 10.00am.

A payslip included in the respondent’s book of documents shows that, on August 26th, the complainant received wages of €1,948.20 for 52.5 standard hours, overtime of six hours and separate payments for meals, holidays and a health and safety allowance.  His net pay that week was €1,052.03, although he only worked for two hours on the Monday.

The respondent’s papers include a letter to the complainant dated September 17th 2021, confirming that he was “employed as a Set Decorator Painter with Moonhaven S1 Production DAC.”  His last date of employment was stated to be 23rd August 2021.”  Shortly after this letter, he received an email from a production accountant confirming his “oral resignation.”  The complainant claims that he did not resign but that he was dismissed on August 23rd 2021, the same day on which the respondent claims that he also commenced on “Moonhaven.”

CA-00046821-001:  Complaint under the Terms of Employment (Information) Act 1994

The complainant’s case is that he was not issued with a statement of his terms and conditions of employment in accordance with the requirements of s.3 of the Terms of Employment (Act) 1994 (“the 1994 Act”).  On each occasion that he was assigned to work on a specific film, he was issued with a “crew contract” indicating that his employer was a DAC.  He said that he was told that if he didn’t sign and confirm his acceptance of the contract, he wouldn’t get holiday pay.

CA-00046821-002:  Complaint under S.15 of the Organisation of Working Time Act 1997

Maximum Weekly Working Hours

In his capacity as an apprentice painter, the complainant was required to work 10 hours per day.  At clause 3.1 of a contract of employment submitted in his book of papers for the hearing, it is stated that he is required to work for 10 hours per day and that one hour is permitted for a lunch break.  Clause 3.2 provides that a producer may require employees to work on a sixth or seventh day in any week. 

Ms Murray referred to a schedule included in the document issued to the complainant as a contract with Badlands TV Productions Limited.  This has the title, “Working Time Act Warranty” which is stated to be set out in a collective agreement between Screen Producers Ireland and SIPTU and the former TEEU, BATU and OPATSI unions.  Ms Murray stated that there is no agreement between Screen Producers Ireland and these unions.  There was a transitional agreement under the Organisation of Working Time Act between Film Makers Ireland (now Screen Producers Ireland) and SIPTU to provide for the implementation of the Organisation of Working Time Act 1997 (“the OWT Act”).  This agreement had a life span of three years from 2000 until 2003 and related to compensatory rest breaks.  This transitional agreement, which is now void, explicitly provided that the maximum working week was 48 hours.  

CA-00046821-005:  Complaint under s.19 and 20 of the Organisation of Working Time Act

Entitlement to Annual Leave

Ms Murray highlighted one of the purposes of the OWT Act referred to in its long title, which is to provide for the protection of the health and safety of employees.  She said that in the six years that he worked for the respondent, the complainant was not permitted to take annual leave.  She said that the obligation to ensure that an employee takes their holidays rests with the employer.

For the duration of a film’s production, Ms Murray said that employees were not permitted to take annual leave, and, when he was laid off, in lieu of annual leave, the complainant was paid 8% of the hours that he worked.  Letters included in the complainant’s documents show that, when he was employed on “Penny Dreadful,” he was laid off in 2015 and 2017 due to a “Christmas hiatus.”  When he was laid off, he was paid 8% of the hours he had worked as holidays.

Ms Murray referred to s.20(1) of the OWT Act which provides that, “The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements …”  Ms Murray also referred to s.20(4) which provides that the “normal weekly rate” means the rate of pay in accordance with statutory instrument 475 of 1997, the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997.  Ms Murray argues that, based on the decision of the Court of Justice of the European Union (CJEU) in King v The Sash Window Workshop Limited[7], the complainant is entitled to compensation for his employer’s failure to allow him to exercise his right to annual leave for six years from 2015 until his was dismissed in 2021.

Referring to the jurisprudence of the CJEU in Von Colson and Kamann v Land Nordrein-Westfalen[8], Ms Murray asked me to make the maximum award of two years’ remuneration for the failure of the respondent to ensure that the complainant availed of his entitlement to take his annual leave.

CA-00046821-004:  Complaint under the Payment of Wages Act 1991

When he moved from season 1 of “Penny Dreadful” to season 2 of the same series, to avail of an opportunity to qualify as a tradesperson, the complainant gave up his role as a stagehand on €21.25 per hour, to become an apprentice painter on €8.65 per hour.  He was paid this hourly rate on seasons two and three of “Penny Dreadful.”  He took on the apprenticeship in good faith, believing that his employer would provide him with the required knowledge and competencies to work in his selected trade.  He did not know that, during an apprenticeship, the apprentice remains an employee of his or her employer, including time spent on off-the-job training.  He did not know that his employer did not apply to Solas for approval to train apprentices and that his employer did not register with the local Education and Training Board. 

When he moved to work on seasons two and three of “Into the Badlands,” the complainant’s hourly rate was increased to €11.96 per hour.  When he was informed that no apprenticeship had been arranged for him, he returned to work as a stagehand, earning €27.71 per hour.  He claims that, by failing to arrange for him to complete an apprenticeship, and, by paying him an hourly rate of pay that was associated with the apprenticeship rate, in breach of s.5 of the Payment of Wages Act 1991, the respondent has made an illegal deduction from his wages.

CA-00046821-007:  Complaint under the Unfair Dismissals Act 1977

It is the complainant’s case that he was dismissed by the construction manager on August 23rd 2021.  He was asked by this manager to move to the production of “Moonhaven” on that day.  Having arrived at work at 7.30am, he was dismissed at 10.00am.  He was given no reason for his dismissal and no procedures were followed. 

Sometime in August 2021, when he was working on “Disenchanted,” the complainant had an accident at work in which he seriously injured his knee.  He was absent for one week.  Ms Murray suggested that there is a link between this accident and the complainant’s dismissal.

CA-00046821-008:  Complaint under the Minimum Notice Act 1973

When he was dismissed, the complainant was given no notice and he was not paid in lieu of notice.  Ms Murray submitted that, based on his service, he is entitled to four weeks’ pay in lieu of notice. 

The complainant’s case is that he was not provided with a statement of his terms and conditions of employment in accordance with s.3(1) of the Terms of Employment (Information) Act 1994 (“the 1994 Act”).  As his employment commenced in 2015, I will consider this complaint as a breach of the 1994 Act prior to its amendment on March 4th 2019 by the Employment (Miscellaneous Provisions) Act 2018 (commenced by SI 69/2019). 

Prior to its amendment, s.3(1) of the 1994 Act required an employer to “give or cause to be given to the employee a statement in writing containing certain particulars,” including the full name of the employer.

Findings

Having established that the complainant was an employee of the respondent from 2015 until 2021, there is no record of him being provided with a written statement of his terms and conditions of employment in accordance with the requirements of s.3 of 1994 Act.  Although he may have been provided with various “contracts” indicating that he was employed by a series of DACs, he was not issued with a statement showing the correct name of his employer.  By asserting that he was employed by a DAC, it is my view that the respondent attempted to conceal the reality of the employment relationship and, in this way, sought to avoid the obligations of an employer under certain employment statutes, and particularly the Protection of Employees (Fixed-term Work) Act 2003.   

I refer to the decision of the Labour Court in the case of Megan Hayes Kelly and Beechfield Private Homecare[9], where Ms Hayes Kelly claimed that her employer was in breach of the 1994 Act because there were omissions and errors in her contract of employment.  In his determination on that complaint, the chairman, Mr Haugh, considered the errors and omissions to be “at the serious end of the spectrum” and awarded the maximum of four weeks’ pay in redress.  In the case under consideration here, I intend to follow the authority of the Labour Court and make the maximum award.

Maximum Weekly Hours of Work

Section 15 of the OWT Act provides that,

An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereinafter in this section referred to as a “reference period”) that does not exceed

(a)     4 months, or

(b)    6 months[.]

The reference period for employees in the construction sector and in the film production sector is four months.

In accordance with s.41(6) of the Workplace Relations Act 2015, I am required to consider a complaint in relation to a breach of s.15 of the OWT Act that has occurred in the six months prior to the date on which the complaint was submitted to the WRC.  As this complaint was submitted on October 25th 2021, the reckonable period is from April 26th 2021 until the complainant’s last day at work on August 23rd 2021.

In the decision of the Labour Court in IBM Ireland and Svoboda[10], the chairman, Mr Duffy considered the purpose and intent of section 15 of the OWT Act:

“It is noteworthy that the section provides that an employer shall not ‘permit’ an employee to work in excess of 48 hours per week.  The obligation created by the Act is, therefore, directed at preventing an employee from working excessive hours and not merely at prohibiting an employer from instructing or requiring an employee to work more than the permitted hours.  It further appears from the language of the Section that it imposes a form of strict liability (it does not provide that an employer may not knowingly permit). This construction of the Section is consistent with the object pursued by Directive 93/104/EC, which the Act transposed into Irish law.  That objective, as stated in Article 1 of the Directive, is to lay down minimum safety and health requirements for the protection of those at work.”

The wording of s.15 is clear in that there is an onus on the employer to not permit an employee to work more than an average of 48 hours per week.  I accept that the business of making a film requires some flexibility around hours of work; however, no derogation is in place for the industry to depart from the legal requirement to ensure that employees do not work in excess of 48 hours a week.

This complainant claims that, when he was employed by the respondent, he worked more than 48 hours a week.  I note from the payslip included in the respondent’s book of documents that, in the week he was dismissed, he was paid for “STD Hours 52.50 hours.”  In addition, he was paid for six hours of overtime, resulting in a week in which, if he had been at work, he was expected to work for 58.5 hours.

The Local Construction Agreement of June 9th 2017 between Metropolitan Film Productions Limited and IFWA provides that the “standard day” from Monday to Thursday is from 8.00 until 19.00, “with payment for 10 hours worked.”  Friday is an eight-hour day.  The Agreement includes a provision for overtime on Saturdays and Sundays, with no indication as to any limit on the number of hours of overtime permitted.  A reasonable interpretation of this clause is that the standard, or, in effect, the minimum working week comprises 48 hours and that employees are expected to work overtime on Saturdays and Sundays.

At the hearing, Ms Murray said that, in the documents provided to the complainant in response to his data access request, there was no record of his daily start and finish times, although, to process weekly pay, this information must be available.  Section 25(4) of the OWT Act provides that, where an employer fails to keep a record to show compliance with the provisions of the Act, then, the burden of proving that there was compliance, rests with the employer.

In the absence of any submission on this matter from the respondent, I have reached a conclusion that, on average, the complainant worked more than 48 hours a week in the four months before he was dismissed on August 23rd 2021.  I have based this finding on the complainant’s final payslip which shows that a standard week comprises 52.5 hours.  I have also taken account of the fact that, before he was dismissed, the complainant was absent for one week due to an injury and, for this reason, his average hours over his last 17 weeks are reduced by 52.5 hours.  I find that, at a minimum, in the 17 weeks prior to his dismissal, the complainant worked for 840 hours, an average of 49.4 hours a week.  It follows therefore, that the respondent has contravened s.15 of the OWT Act regarding maximum working hours.

Under the heading “Holidays and Public Holidays,” the Local Agreement referred to in the previous section states simply, “The obligations under the OWT will apply.”  The complainant’s evidence is that, for the duration of his employment, he was not permitted to take annual leave.  He was laid off at Christmas during what was referred to in letters as “the Christmas hiatus.”  At the commencement of this “hiatus,” he was paid 8% of the hours that he worked since he was previously laid off.  At other times of the year, each time there was no work for him on the construction of a set, he was laid off and paid 8% of the hours he had worked following his return to work since he was last laid off.

Section 19 of the OWT Act - Entitlement to Annual Leave

Section 19(1) of the OWT Act provides that an employee “shall be entitled” to four weeks’ holidays in a leave year, subject to certain conditions regarding hours worked.  The complainant’s case is that, by not permitting him to take holidays, his employer was in breach of s.19. 

Section 20 – Timing of Annual Leave

Section 20(1) of the Act provides that the timing of annual leave “shall be determined” by the employer:

(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

(a) to the employer taking into account—

(i) the need for the employee to reconcile work and any family responsibilities,

(ii) the opportunities for rest and recreation available to the employee,

(b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and  

(c) to the leave being granted within the leave year to which it relates or, with the consent of the employee, within the 6 months thereafter.

It is clear from this that the time at which annual leave may be taken “shall be determined” by the employer, subject to consultation with the employee, and, with a view to ensuring that the employee is given an opportunity for rest and recreation and to fit in with family responsibilities.

Section 20(2) deals with pay for annual leave and provides that holiday pay must be paid in advance at the employee’s normal weekly rate of pay.

Section 23 – Pay for Holidays Not Taken at the Termination of Employment

Section 23(1) sets out the entitlement of employees to annual leave not taken at the end of the employment relationship:

(1) (a) Where -

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, 

the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

The meaning of “the relevant period” is explained in subsection (1)(b).  The explanation is complicated and encompasses a variety of timelines and scenarios.  Subsection (1)(b)(iii) and (iv) are concerned with employees who, prior to the termination of employment, were absent due to illness.  As these subsections are not relevant to the complaint we are considering, I have not included them below:

(b) In this subsection -

‘relevant period’ means -

(i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year,

S.20(1)(c)(i) refers to holidays not taken in the leave year that the employee ceases employment. 

(ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year—

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

The effect of this subsection (1)(b)(ii) is that an employee who leaves in the first half of a leave year is entitled to payment for holidays not taken in that year and in the previous year.

Time Limit for Consideration of a Contravention of Section 19

Section 41(6) of the Workplace Relations Act 2015 provides that I, as the adjudicator in this matter, may not consider a complaint regarding a contravention of the OWT Act that occurs outside the period of six months ending on the date on which a complaint is submitted to the WRC.  Section 23(1)(b)(ii) of the Act has the effect of extending this time limit to include the year prior to the termination of employment, but this provision has no effect on the complainant’s circumstances, because his employment ended in the second half of the leave year, on August 23rd 2021 (assuming that the leave year coincides with the calendar year).  In any event, the complainant claims compensation for leave not taken in the six years before his employment ended.

Relying on the decision of the CJEU in Conley King v Sash Window Workshop, (footnote 7) Ms Murray argued that I have authority to extend the time limit and that the complainant is entitled to compensation for holidays not taken from July 2015 until his dismissal in August 2021.  This argument requires some examination.

Mr King was employed as a contractor on a commission-only basis and, for the 13 years that he worked for Sash Window Workshop, he was not paid for holidays.  When he retired in October 2012, his employer rejected his request for holiday pay.  He brought his case to the Employment Tribunal in the UK, which concluded that he was a “worker” within the meaning of EU Directive 2003/88 concerning the organisation of working time, and therefore, he was entitled to paid annual leave.  This outcome was appealed by the employer and the UK Employment Appeal Tribunal referred the matter to the CJEU for an opinion.  Finding that Mr King’s status as a worker gave him rights under Directive 2003/88, the Court decided that he was entitled to pay for the holidays that he took and for which he was not paid and for holidays that he did not take when he worked for Sash Window Workshop from 1999 until 2012.

At paragraph 65 of the Judgement, the CJEU concluded:

“Article 7 of Directive 2003/88 must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, until termination of his employment relationship, paid annual leave rights not exercised in respect of several consecutive reference periods because his employer refused to remunerate that leave.”

Article 7 of Directive 2003/88/EC, the directive on working time, sets out the entitlement of employees to annual leave:

1.        Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.

2.       The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.

Sections 19, 20 and 23 of the OWT Act transposed these provisions into Irish law.

When an employee who has not been absent due to illness refuses to take holidays, having been encouraged and facilitated to do so, there may be a limit on the number of days for which an “allowance in lieu” must be paid.  These limits are set out at s.23(1)(b)(i) and (ii) of the OWT Act.  In accordance with these provisions, depending on whether an employee leaves in the first or second half of the leave year, the payment of an allowance in lieu of untaken holidays is limited to the leave year in which the termination takes place and the previous leave year.

Since the decision in Sash Window Workshop in June 2017, the CJEU has issued several important decisions concerning the entitlement of employees to pay for untaken holidays at the termination of employment.  In this regard, I have the benefit of the analysis of the jurisprudence undertaken by Kevin Baneham in 2020 in A Facilities Coordinator v A Bakery[11].  The Judgements of the CJEU demonstrate that, where an employee who has been absent due to illness is dismissed or resigns, national law may impose a limit on the number of days’ holidays for which an “allowance in lieu” must be paid, and this may result in the loss of accrued annual leave.  For employees who have been absent due to illness, in Irish law, the procedure for payment of an allowance in lieu is set out at s.23(1)(b)(iii) and (iv) of the OWT Act. 

In Max-Planck v Shimizu[12], the CJEU reaffirmed the findings of the Court in previous decisions that national law may impose a limit on an entitlement to annual leave which is not taken when the employee was in a position to take the leave but did not do so.  However, the Court concluded that a national court must,

“…ensure that, should the employer not be able to show that it has exercised all due diligence in enabling the worker actually to take the paid annual leave to which he is entitled under EU law, the worker cannot be deprived of his acquired rights to that paid annual leave or, correspondingly, and in the event of the termination of the employment relationship, to the allowance in lieu of leave not taken which must be paid, in that case, directly by the employer concerned.”

On the same day in November 2018 that Max-Planck was handed down, the CJEU issued its decision in Kreuziger v Land Berlin[13].  Mr Kreuziger was a legal trainee and he didn’t take any holidays in the two years of his traineeship with Land Berlin.  Concluding that national legislation may provide for circumstances in which annual leave not taken may be lost, paragraph 42 of this Judgement set out a condition under which holidays are not lost: 

“…the Court has in particular held that Article 7(1) of Directive 2003/88 does not in principle preclude national legislation which lays down conditions for the exercise of the right to paid annual leave expressly conferred by the directive, including even the loss of that right at the end of a leave year or of a carry-over period, provided, however, that the worker who has lost his right to paid annual leave has actually had the opportunity to exercise the right conferred on him by the directive.”

At paragraph 52 of the same Judgement, the CJEU held that the responsibility for ensuring that an employee takes their leave rests with the employer:

“The employer is in particular required, in view of the mandatory nature of the entitlement to paid annual leave and in order to guarantee the effectiveness of Article 7 of Directive 2003/88, to ensure, specifically and transparently, that the worker is actually given the opportunity to take the paid annual leave to which he is entitled, by encouraging him, formally if need be, to do so, while informing him, accurately and in good time so as to ensure that that leave is still capable of procuring for the person concerned the rest and relaxation to which it is supposed to contribute, that, if he does not take it, it will be lost at the end of the reference period or authorised carry-over period, or upon termination of the employment relationship where the termination occurs during such a period.”

Findings

This is an unusual complaint and the context requires some unravelling.  Over a period of six years, the complainant worked on eight film or TV productions.  As I have set out previously, I am satisfied that he was not employed by eight DACs, but that he was an employee of the respondent, and that his employment was not terminated by seven DACs before he was dismissed when he worked on “Moonhaven” in August 2021.  I can find no comparator industry where employees are laid off and taken back over the entire course of the employment relationship.  However, I have no criticism of this practice, which seems necessary to manage the fluctuations in the film production business and which is legislated for at s.11 of the Redundancy Payments Act 1967.

I am satisfied that the complainant was laid off intermittently over a period of six years.  When he was laid off, he received holiday pay, equivalent to 8% of pay for the hours he worked in the previous production period.  As he was not dismissed until August 23rd 2021, it is my view that the practice of paying holiday pay each time he was laid off in the previous six years is a breach of article 7 of the Directive on Working Time which provides that every worker is entitled to paid annual leave and that the leave “may not be replaced by an allowance in lieu, except where the employment relationship is terminated.”

While it is not my role to do so, it could be argued that the complainant had the benefit of his holidays each time he was laid off.  In effect, at the beginning of each period of lay-off, he had wages and time off.  The problem with this argument is that the complainant had no idea when he would be re-employed and he might have commenced his period of lay-off by taking on another job, with the result that he got no holidays.  A second problem with this argument is that the complainant generally got one week’s notice of when he was going to be laid off, and, contrary to the requirement at s.20 of the OWT Act, there was no consultation with him regarding his family commitments or when it was a suitable time for him to have a break.

The complainant’s circumstances are distinguishable from those of Mr King in Sash Window Workshop.  Mr King took some holidays, but he didn’t get holiday pay.  Also, for the duration of his employment, he didn’t take his full entitlement to four weeks every year.  In Max-Planck v Shimizu and in Kreuziger v Land Berlin, when the employment of Mr Shimizu and Mr Kreuziger was terminated, their respective employers did not pay them for the holidays they didn’t take outside the reference periods in German labour law, and this was considered to be a breach of Article 7 of the Working Time Directive.  The difference between these and the complainant’s circumstances is that the complainant was paid for the leave he wasn’t permitted to take. 

The jurisprudence to which I have referred points to the importance of the Working Time Directive as a important social statute, with the objective of promoting the safety and health of workers.  Article 7 sets out the entitlement of employees to four weeks’ holidays.  The mandatory nature of this entitlement is underscored by the provision that the leave “may not be replaced by an allowance in lieu.”  The decision in Kreuziger emphasises the requirement of the employer to consult with employees regarding the timing of the leave and to ensure that consideration is given to the need for rest and to manage family responsibilities.  Sections 19 and 20 of the OWT Act transpose these provisions into Irish law. 

Conclusion

I am satisfied that the complainant was paid for all the holidays to which he was entitled.  I find however, that there has been a contravention of sections 19 and 20 of the OWT Act, because of the policy in the workplace to not permit holidays to be taken during production and because of the failure of the respondent to consult with the complainant regarding the timing of his annual leave.

This is a complaint regarding the complainant’s understanding that, when he was employed on seasons two and three of “Penny Dreadful” and seasons two and three of “Into the Badlands”, he was an apprentice painter.  Arising from this, he accepted what he considered was an apprentice’s rate of pay; €8.65 on “Penny Dreadful” and €11.96 on “Into the Badlands.”

The complainant finished working on “Into the Badlands” in 2018.  He then worked for the respondent in 2020 and 2021.  He worked very briefly on “Moonhaven,” when he was dismissed on August 23rd 2021.  This complaint was submitted to the WRC on October 25th 2021.

In accordance with s.41(6) of the Workplace Relations Act 2015, a complaint must be submitted to the WRC before the expiry of six months from the date of the contravention.  As he submitted this complaint more than three years after the last date on which he was paid an apprentice’s rate of pay, his complaint has been submitted outside the statutory time limit and I have no jurisdiction to proceed with my enquiry.     

The complainant’s evidence is that he was summarily dismissed when he had an argument with his manager concerning a change in the work he was required to do when he was assigned to work on “Moonhaven” on August 23rd 2021.  In the respondent’s book of papers, Ms Harkin included a letter which states that the complainant’s last day of employment was August 23rd 2021. 

Section 6 of the Unfair Dismissals Act provides that, subject to some exceptions, every dismissal is unfair, until the respondent proves the contrary.  The respondent made no submission to rebut the complainant’s assertion that he was dismissed unfairly and they presented no witnesses to counter his claim.  As the respondent has not discharged the burden of proof regarding the dismissal of the complainant, based on his uncontradicted evidence, I must conclude that his dismissal was unfair.

The complainant was not issued with a formal disciplinary procedure, and when he sought confirmation that he was dismissed, he was informed that he had resigned.  He was not offered an opportunity to appeal against the decision of the construction manager to dismiss him and, for this reason, I find no fault in his failure to appeal against his dismissal.

As he was employed by the respondent from July 27th 2015, the complainant completed more than five years of service.  In accordance with s.4 of the Minimum, Notice and Terms of Employment Act, he was entitled to four weeks of notice.  It is apparent that he was given no notice of the termination of his employment and he is therefore entitled to be paid in lieu of notice. 

CA-00046821-001:  Complaint under the Terms of Employment (Information) Act 1994

I decide that this complaint under the Terms of Employment (Information) Act 1994 is well founded and I direct the respondent is to pay the complainant compensation equivalent to four weeks’ pay.  The payslip included in the respondent’s book of papers shows that the complainant’s weekly wages comprised €1,454.78 for a standard 52.5 hours, €249.39 for six hours of overtime and €107.70 in allowances for meals and safety equipment.  His gross weekly pay was therefore, €1,811.87.  I direct the respondent to pay the complainant compensation of €7,247.48.  In accordance with s.192A of the Taxes Consolidation Act 1997, this award is for a breach of an entitlement under a relevant Act and is not subject to deductions for tax, PRSI or USC.

CA-00046821-002:  Complaint under the Organisation of Working Time Act 1997

I decide that this complaint concerning maximum weekly working hours is well founded.  Considering the issue of redress, I am guided by the principle established in Von Colson (footnote 8)to the effect that, where rights under EU law are infringed, redress should not only compensate for economic loss but provide a deterrent against future breaches.  Therefore, in relation to the breach of section 15 of the OWT Act concerning maximum working hours, I direct the respondent to pay the complainant compensation of €5,000.  This award is for a breach of an entitlement under a relevant Act and is not subject to deductions for tax, PRSI or USC.

CA-00046821-005:  Complaint under the Organisation of Working Time Act 1997

I decide that this complaint regarding a breach of sections 19 and 20 of the OWT Act is well founded.  In line with the principle set out in Von Colson to which I have referred, I direct the respondent to pay the complainant €5,000 for breach of a statutory right which does not constitute arrears of holiday pay.  This award is for a breach of an entitlement under a relevant Act and is not subject to deductions for tax, PRSI or USC.

CA-00046821-004:  Complaint under the Payment of Wages Act 1991

I decide that I have no jurisdiction to adjudicate on this complaint, because it was submitted outside the time limit set out at s.41(6) of the Workplace Relations Act 2015.

CA-00046821-007:  Complaint under the Unfair Dismissals Act 1977

I decide that this complaint is well founded.  In his evidence, the complainant said that, for 12 months after his dismissal, he was unable to work due to a knee injury.   He said that he started a new job as a painter and decorator in August 2022.  Considering these facts, and, in accordance with s.7 of the Unfair Dismissals Act 1977, I direct the respondent to pay the complainant compensation of €7,247.48, equivalent to four week’s pay.  This award is in the form of loss of earnings and is subject to the normal deductions of tax, PRSI and USC.     

CA-00046821-008:  Complaint under the Minimum Notice Act 1973

I decide that this complaint is well founded and I direct the respondent to pay the complainant compensation of €7,247.48, equivalent to his entitlement to four weeks’ pay in lieu of notice.  This award is for a breach of an entitlement under a relevant Act and is not subject to deductions for tax, PRSI or USC.

Name of the respondent, statement of terms and conditions of employment, maximum weekly hours, holidays, wages properly payable, dismissal, notice