FTD241

SUBJECT:

Appeal of Adjudication Officer Decision No(s) ADJ-00025792 CA-00032865-001.

BACKGROUND:

The Employee appealed the Adjudication Officer’s Decision to the Labour Court.  A Labour Court hearing took place on 10 October 2023.   The following is the Court's Decision:

DECISION:

Background to the Appeal

This is an appeal by Mr Clive McCarthy (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00025792, dated 8 April 2022) under the Protection of Employees (Fixed-term Work) Act 2003 (‘the Act’). The Adjudication Officer found the Complainant’s complaint under the Act was statute-barred and that, therefore, she had no jurisdiction to conduct an enquiry into it. The Notice of Appeal was received in the Court on 29 April 2022. The Court heard the appeal in Dublin on 10 October 2023. The Complainant gave sworn evidence as did Mr John Arkins. No witness was called on behalf of Metropolitan Film Productions Limited (‘the Respondent’).

The Complainant’s Case

The Complainant submits that he had acquired a contract of indefinite duration within the meaning of the Act with the Respondent as he had worked pursuant to a series of fixed-term contracts with a number of related companies. He further submits that the final production he worked on was a series called Badlands 3 following the completion of which - in March 2018 - he was laid off and was never subsequently employed by the Respondent. His claim is one of penalisation contrary to section 13 of the Act.

At paragraph 2.25 of her written submission to the Court, the Complainant’s Representative states:

“Despite Mr McCarthy having acquired a contract of indefinite duration by the operation of law, the employer continually issued fixed-term contracts after each period of layoff in breach of the Act of 2003 and as no notice was received under s.8 of the Act no objective justification existed for the renewal of his contracts on a fixed-term basis.”

The Respondent’s Defence

The Respondent submits that the Complainant was never in the Respondent's employment and puts him on full proof of his assertions in this regard. It further submits that in the absence of such proof, it follows that the Complainant has impleaded the incorrect Respondent. It is the Respondent’s case also that the Complainant was employed by Badlands Three TV Productions DAC and it exhibits a written specified purpose contract that it submits bears the Complainant’s signature and, therefore, confirms that he was employed by that company for the duration of that specified purposed contract (which concluded in March 2018) and not by the Respondent. The second element to the defence advanced by the Respondent is that the within claim is statute barred as it was not received by the Workplace Relations Commission until December 2019, some twenty-one months after the Complainant’s employment with Badlands Three TV Productions DAC had terminated.

The Complainant’s Evidence

The Complainant’s direct evidence was brief and succinct. He told the Court that he had worked as a Stagehand on a number of different productions for television beginning some eleven or twelve years previously. He named the following as examples of the productions he had worked on: Treasure Island; Vikings; Penny Dreadful and Badlands. The Complainant told the Court that it was his understanding that Mr Flynn and Mr O’Sullivan were directors of various production companies set up for the purpose of producing the individual tv series he worked on and that they were also directors of the Respondent company.

Under cross-examination that Complainant was first directed to a copy of the certificate of incorporation for Badlands Three TV Productions DAC that confirms the date of incorporation of that company was 5 May 2017. The Complainant was next directed to a document that is purported to be a contract of employment between him and the aforementioned company specifying a start date of 26 June 2017 at a rate of pay of €21.35 per hour. The Complainant was directed to four separate locations in the contract where there is a signature in the format of his name. (Pages 1, 6, 12, 13 and 15 of the contract refer). He denied that any of the four signatures corresponded to his actual signature.

The Respondent’s Representative next exhibited a copy P45 that indicates that the Complainant ceased employment with Badlands Three TV Productions DAC on 30 March 2018. The Complainant told the Court that he has no recollection of seeing this P45 ever. In reply to questions from the Respondent’s Representative, the Complainant confirmed that he had worked for Badlands Three TV Productions DAC and that he was not in possession of any documentary evidence to demonstrate that he had been in the employment of the Respondent.

In reply to questions from the Court, the Complainant said that there had generally been a time gap between the different productions he had worked on. He also confirmed that he had signed a new contract for each production but had no recollection of the identify of the person or persons with whom he signed those contracts.

Evidence of Mr John Arkins

The witness told the Court that he is a Shop Steward with the IFWA and had been the Complainant’s Supervising Stagehand. The witness went on to tell the Court that each individual tv production was preceded by a pre-production meeting with Mr Flynn and Mr O’Sullivan at which he, in his capacity as Shop Steward, discussed with them the operation of the Collective Agreement and the appropriate staffing levels thereunder. The witness’s evidence was that the relevant terms and conditions of workers employed on the productions in question were governed by the Collective Agreement which had been signed by him and by Mr Flynn. The witness also told the Court that the individuals who had acted on behalf of the employers in the negotiations of the Collective Agreement were Mr James Flynn, Mr Morgan O’Sullivan and Mr Seamus Ms Innes. He said the Respondent unilaterally withdrew from the Collective Agreement on 31 December 2018.

The witness was then directed to copy Company Registration Office documents for a number of DAC production companies and he confirmed that each of the DACs in question had two directors in common.

Discussion and Decision

There is no evidence – documentary or otherwise - before the Court on which the Court can make a finding that the Complainant has impleaded an entity which was his employer for the purposes of the Act. There is no evidence of the existence of any contract of employment between the Complainant and the Respondent having come into being at any point in time. It follows that the appeal fails and the decision of the Adjudication Officer is varied accordingly.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
TH	______________________
5 January 2024	Deputy Chairman