FTD2411

Appeal of Adjudication Officer Decision No's: ADJ-00025789 (CA-00032861-001).

BACKGROUND:

The Worker appealed the Adjudication Officer’s Decision to the Labour Court on 29 April 2022. A Labour Court hearing took place on 24 October 2023.

The following is the Labour Court's Decision:

DECISION:

Stephen Preston (the Complainant) appealed a decision of an Adjudication Officer in his complaint made under the Protection of Employees (Fixed-Term Work) Act 2003 (“the Act”), against Metropolitan Film Productions Limited (the Respondent).

In response to a request from the Complainant made in advance of the Court hearing, the Court issued a witness summons to a named individual in accordance with the provisions of Section 21 of the Industrial Relations Act, 1946. That individual wrote to the Court prior to the hearing date to advise that they were unable to attend the hearing of the Court for stated reasons. The Complainant’s representative was advised of this situation at the outset of the hearing, and confirmed to the Court that the Complainant was satisfied to proceed with the hearing in the absence of that witness. 

Preliminary Matters

Preliminary matters were raised with the Court addressing its jurisdiction to hear the appeal, relating to (i) whether the correct Respondent was impleaded, (ii) the relevant time limits for lodging the complaint under the Act, and (iii) whether the Complainant had locus standi as a fixed-term employee.

Respondent Submission – Was the correct Respondent impleaded?

The Respondent submits that the Labour Court does not have jurisdiction to hear the within complaint, as the Complainant has failed to implead the correct Respondent. The Complainant was never employed by Metropolitan Film Productions Ltd.

Metropolitan Film Productions Ltd was established in 1997 to develop and produce film and television projects. The Complainant was previously engaged as a self-employed individual on a contract for services by a separate company, Badlands Three TV Productions DAC during the period from 19 July 2017 and 31 August 2018.

Badlands Three TV Productions DAC is an entirely sperate legal entity to Metropolitan Film Productions Limited. The Complainant is not, nor was he ever, employed by a company named or trading as Metropolitan Film Productions Ltd. The Complainant has produced no evidence to indicate that an employment relationship ever existed. 

The Respondent referred to the case of Starrus Eco Holdings T/A Greenstar Wastepal v Calvin Partner RTD16/4 where this Court referring to the case of Sylvia Wach v Travelodge Management Limited [2016] 27 ELR 22 considered the limited scope of its jurisdiction to amend the name of a party to an appeal before it as follows: -

“What is in issue in this case does not involve a formal or verbal error. Nor does the complainant's application relate to a determination issued by the court. The wrong respondent was impleaded and the union's application is to amend the claim by substituting another legal person for the respondent cited. In the court's view that goes beyond was intended by s.88 of the Act.”

It is a requirement under Irish legislation governing film tax relief available for film and television production made in Ireland that a separate special purpose entity, which is normally a designated activity company (‘DAC’), be established by the Irish Producer company for each individual production.  Once the specific production is completed and delivered to a third a party, the final audit and compliance report is prepared for the Revenue Commissioners.

The Complainant was last engaged by Badlands Three TV Productions DAC, the special purpose entity solely established for the production of “Into the Badlands Season 3” to provide services to that series.  No commitments were given to the Complainant regarding to any future productions. 

Complainant Submission - Was the correct Respondent impleaded?

The Complainant’s position is that the correctly named respondent was enjoined on the appeal form. 

The complainant was employed for sixteen years on numerous fixed term contracts. Metropolitan Film Productions Ltd is the producer company, as is required under statute S841 of the Taxes consolidation Act 1997, that issued the Complainant with successive fixed-term contracts. 

In order to receive a Film Certificate from the Minister for each film production, the Respondent is legally obliged to be a producer company and to set up a qualifying company (DAC) which must be a wholly owned subsidiary of it. The DAC is a merely a tool through which all production costs associated with a particular film are channelled. The DAC is set up in the name of the individual production company to channel the considerable tax relief received up front by the Producer company, in order to satisfy State Aid rules. The Revenue requirement to have a DAC incorporated does not absolve the producer company from its legal obligations.

The Respondent and its subsidiary is a single economic unit, which is supported by the Taxes Consolidation Act of 1997. The companies are associated and subsidiary companies for the purposes of Annual Accounts submitted to the CRO and have two directors in common.

The Corporate Veil can be lifted in circumstance where the justice of the case warrants it. The Respondent in this case is attempting to evade existing contractual and statutory obligations to the Complainant.  

The Relevant Law

The Act at Section 1 defines an employee as follows:

"employee" means a person of any age, who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer and, for the purposes of this Act, a person holding office under, or in the service of, the State (including a civil servant within the meaning of the Civil Service Regulation Act 1956 ) shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority, a harbour authority, the Eastern Regional Health Authority, the Northern Area Health Board, the East Coast Area Health Board or the South-Western Area Health Board, a health board or vocational education committee shall be deemed to be an employee employed by the authority, health board or vocational education committee, as the case may be;

The Act at Section 1 defines an employer as follows: -

"employer" means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;

The Act at Section 1 defines an associated employer as follows:

1(2) Employers are deemed to be associated if –

(a) one is a body corporate of which the other (whether directly or indirectly) has control, or (b) both are bodies corporate of which a third person (whether directly or indirectly) has control.

Court Deliberations – Was the correct Respondent impleaded?

The parties made comprehensive submissions to the Court about the nature of the industry within which the Respondent operated and in which the Complainant was employed. Both parties confirmed to the Court that they were satisfied that the Court had heard all relevant arguments.  Both parties declined to proffer any witness testimony.

The Complainant contends that Metropolitan Film Production Ltd was an associated employer within the meaning of the Act during the cognisable period for the within complaint. The burden of proof rests with the Complainant to establish in the first instance that he was an employee of Metropolitan Film Productions Ltd for the purposes of the Act.

No evidence was presented to the Court to establish that the Complainant was ever in the employment of Metropolitan Film Production Ltd and the Complainant accepts that he never entered a contract of employment with Metropolitan Film Production Ltd.  The Complainant’s representative confirmed to the Court that could provide no documentation to support the assertion that the Complainant had any contractual relationship with Metropolitan Film Production Ltd.

The Respondent’s position is that there is no record of an employment relationship between the parties.  Badlands Three TV Productions DAC is a separate entity to Metropolitan Film Production Ltd.  At no time was the Complainant ever engaged or employed by Metropolitan Film Production Ltd.

The Court does not accept that the Complainant’s position that Metropolitan Film Production Ltd, because it may be or have been an associated employer of any designated activity company which may have entered upon a contract of employment with the Complainant became, as a result, the employer of the Complainant within the meaning of the Act.

Rule 52 of the Labour Court Rules 2022 provides that the Court may, at its discretion, give a preliminary ruling on any aspect of a case where it is satisfied that it has the potential to be determinative of the case.

For the reasons set out above, the Court finds that Metropolitan Film Production Ltd was not at any material time the employer of the Complainant. It follows that the incorrect Respondent has been impleaded in the within proceedings. Accordingly, the Court determines that it has no jurisdiction to hear the substantive matter.

In these circumstances, it is not necessary for the Court to determine the other preliminary matters raised in relation to the time limits for lodging the within complaint under the Act, and whether the Complainant had locus standi as a fixed-term employee.

The appeal is disallowed, and the Decision of the Adjudication Officer is affirmed. 

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
DC	______________________
2 January 2024	Deputy Chairman