FTD245

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00025891 (CA-00032947-001)

BACKGROUND:

The Employer appealed the Adjudication Officer’s Decision to the Labour Court on 24 January 2024. A Labour Court hearing took place on 26 April 2024. The following is the Labour Court's Decision.

DECISION:

This matter comes before the Court as an appeal by Metropolitan Films International Limited (the Respondent) of a decision of an Adjudication Officer in a complaint made by William Hanlon (the Complainant) under the Protection of Employees (Fixed-Term Work) Act, 2003.

Background

The Complaint before the Court was made to the Workplace Relations Commission (WRC) on 12th December 2019. The Adjudication Officer decided that the complaint was well founded in a decision dated 19th December 2023.

The Complainant submitted that, contrary to the provisions of section 13 of the Act, he had been penalised by the Respondent for seeking his entitlement under the Act following his request for a contract of indefinite duration. The form of penalisation was that he was not called back to work by the Respondent upon the resumption of production in December 2019 having previously been called to work until the cessation of production in August 2018. The Complainant submitted a copy of a contract of employment and related documents issued to him by Badlands Three TV Productions Designated Activity Company (DAC) signed by him on 23rd May 2018. He confirmed that he had never received or entered into a contract of employment provided to him by the Respondent. The Complainant’s representative confirmed to the Court that no contract of employment identified the Respondent as a party to the contract.

Preliminary issues raised by the Respondent

The Respondent submitted that it had never been the employer of the Complainant.

The Respondent submitted that the within complaint was submitted to the WRC on 12th December 2019 and that, consequently, the cognisable period for the complaint, having regard to the provisions of the statute, was the six months prior to that date. The employment of the Complainant by Badlands Three TV Productions Designated Activity Company terminated on 15th June 2018 and consequently no breach of the Act can be contended to have occurred in the six months prior to the making of the complaint on 12th December 2019.

The Respondent raised an issue as regards the name of his alleged employer as detailed by the Complainant on the complaint form submitted by the Complainant to the WRC and the subsequent alteration of that name in her decision by the Adjudication Officer. It was accepted however that the entity named by the WRC on the face of its decision must, by operation of the law, be the Responding entity before the Court. The Court noted that no challenge had been made in any forum as regards the change of Respondent’s name by the Adjudication Officer.

The Complainant contended that the Respondent was in fact his employer because the Respondent and the various DAC’s who were party to employment contracts issued to him over the years were associated and subsidiary companies. The Complainant set out significant detail as regards the provisions of the Taxes Consolidation Act, 1997 and the dynamics of the film production sector.

The Complainant accepted that he had not engaged in work for the Respondent or any relevant DAC in the 12 months prior to the making of the within complaint. He contended however that he had been “laid off” by the Respondent upon the cessation of his contract of employment with Badlands Three TV Productions Designated Activity Company.

The Court set out that it would, in its hearing, hear the comprehensive submissions of both parties and any evidence either party might wish to adduce but that, ultimately, if it decided that the Respondent was not, in fact, the employer of the Complainant within the meaning of the Act, no further decision would be required by the Court. Both parties confirmed their understanding of the approach of the Court and raised no objection.

Summary position of the Complainant

The Complainant submitted that he had been employed on a succession of qualifying film and television productions by the Respondent Company since 2007, and that in line with normal practice he was ‘on layoff’ on the basis of last in first out when all production ceased on 31st August 2018. He submitted that no further production was undertaken by the Respondent until December 2019. He submitted that following a protracted period on layoff he was not returned to work when production resumed.

He submitted that the within complaint arose because of the continued failure of the Respondent to recognise the Complainant’s entitlement under the Act and that, contrary to the Act at Section 13, he was penalised following his request for a contract of indefinite duration.

He submitted also that the Respondent was in breach of the Act at Section 8(2) in that he was offered no objective justification at the date of renewal of his fixed term contracts. He asked the Court to have regard to a range of domestic and European jurisprudence addressing the obligations resting upon an employer when renewing fixed term contracts of employment.

The Complainant submitted significant detail related to the Taxes Consolidation Acts and contended that Badlands Three TV Productions Designated Activity Company is a related party and/or a subsidiary of the Respondent. He submitted that the setting up or incorporation of a DAC by the Respondent is a reflection of various European and national measures affecting the operation of the film production sector and national tax law.

Summary evidence on behalf of the Complainant

Deputy Boyd Barrett TD gave evidence on behalf of the Complainant. He stated that, in approximately 2018, he had, in the company of representatives of the Irish Film Workers Association (IFWA) met a Mr James Flynn, now deceased. Mr Flynn was, in the understanding of the witness, a director of the Respondent and he appeared to him, the witness, to accept that he had some form of employment relationship over a period of time with members of the IFWA. At that meeting Mr Flynn said that there was no work available for members of the IFWA but said that they would be called back. Under cross examination he agreed that the Complainant was not in attendance at this meeting.

He said that the IFWA had set up the meeting with Mr Flynn and that its members had worked on successive productions with which Mr Flynn was involved.

The witness stated that an Oireachtas Committee had convened to consider matters arising in the industry and, in particular, the operation of elements of the Taxes Consolidation Acts. He could not recall whether the Complainant attended at that meeting but gave the opinion that he may not have done so.

Summary position of the Respondent

The Respondent submitted that it had never engaged in an employment relationship with the Complainant. The Complainant had been employed by an entity entitled Badlands Three TV Productions Designated Activity Company (DAC) up to 15th June 2018.

The Respondent submitted significant detail in relation to the operation of the Taxes Consolidation Acts and Section 481 of those Acts in particular. It was submitted that Section 481 of those Acts does not compromise or oust the employment rights of employees such as the Complainant. On the contrary, his rights have, at all times, remained fully intact as against his employers, being the qualifying companies (DAC’s) set up in accordance with the legislation and with which the Complainant entered into contracts of employment.

The Respondent submitted that this Court, in a range of decisions arising from similar or identical factual matrices, had concluded that the employer within the meaning of the Act was the DAC with whom a complainant held a contract of employment.

The Respondent submitted that any contention that it is, within the meaning of the Act, an associated employer with Badlands Three TV Productions Ltd is a misconceived and incorrect interpretation of Section 2(2) of the Act and that its relationship with that entity is entirely irrelevant to the nature of the Complainant’s employment within the meaning of the Act.

The Respondent submitted that the Complainant’s employment with Badlands Three TV Productions DAC came to an end on 15th June 2018, and consequently the within complaint, made to the Workplace Relations Commission on 12th December 2019, was made significantly outside the time limit permitted by the Act.

Summary evidence on behalf of the Respondent.

Mr Stephen Burt, a production manager on the Badlands Three production gave evidence on behalf of the Respondent. Mr Burt was responsible for hiring labour on the production.

He stated that the Complainant was contracted by Badlands Three TV Productions DAC and paid by that company to work on the Badlands 3 production. The contract of employment between Badlands Three TV Productions DAC and the Complainant made clear that his employment would terminate upon the conclusion of the production.

Mr David McLoughlin, a Director of Badlands Three TV Productions DAC and Metropolitan Films International Limited since February 2023, gave evidence on behalf of the Respondent. He stated that, on the basis of his study of relevant files and records, the Complainant had not been an employee of the Respondent at any material time or at all.

Mr John Gleeson, a Chartered Tax Advisor gave evidence on behalf of the Respondent. He gave evidence that the tax framework in place means that Badlands Three TV Productions DAC was a qualifying company within the meaning of the relevant legislation and that it must be the employer of workers engaged on the production.

Relevant Law

The Act at Section 1 defines an employee, and an employer as follows:

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

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

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

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

(a) one is a body corporate of which the other (whether directly or indirectly) has control, or

(b) both are bodies corporate of which a third person (whether directly or indirectly) has control.

The Act at Section 8 makes provision as follows:

8.(1) Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is—

(a) arriving at a specific date,

(b) completing a specific task, or

(c) the occurrence of a specific event.

(2) Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.

(3) A written statement under subsection (1) or (2) is admissible as evidence in any proceedings under this Act.

(4) If it appears to a rights commissioner or the Labour Court in any proceedings under this Act—

(a) that an employer omitted to provide a written statement, or

(b) that a written statement is evasive or equivocal,

the rights commissioner or the Labour Court may draw any inference he or she or it consider just and equitable in the circumstances.

The Act at Section 9 makes provision as follows:

9.—(1) Subject to subsection (4), where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.

(2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.

(3) Where any term of a fixed-term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.

(4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.

(5) The First Schedule to the Minimum Notice and Terms of Employment Acts 1973 to 2001 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous.

The Act at Section 13 makes provision as follows:

13(1) An employer shall not penalise an employee—       

(a) for invoking any right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for by this Part,

(b) for having in good faith opposed by lawful means an act which is unlawful under this Act,

(c) for giving evidence in any proceeding under this Act or for giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a) or (b), or

(d) by dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3).

(2) For the purposes of this section, an employee is penalised if he or she—

(a) is dismissed or suffers any unfavourable change in his or her conditions of employment or any unfair treatment (including selection for redundancy), or

(b) is the subject of any other action prejudicial to his or her employment.

Discussion and conclusion

The Act, at section 1 in relevant part, defines an employer as:

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

An employee is defined by the Act at section 1 in relevant part as:

“employee” means a person of any age, who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment

The Complainant submits that he entered into a contract of employment with Badlands Three TV Productions Designated Activity Company. He does not contend that he entered upon a contract of employment at any material time which identified the Respondent as his employer within the meaning of the Act. He contends however, that the Respondent was an associated company or associated employer with Badlands Three TV Productions Designated Activity Company and, consequently, should be taken as his employer at the material time notwithstanding his contract of employment was with a different legal entity, viz. Badlands Three TV Productions Designated Activity Company.

Notwithstanding the comprehensive exploration and description provided by both parties of the sector within which the Complainant was employed at the material time and the tax infrastructure surrounding that sector, the Court must confine itself to the application of the Act to the facts. It is an undisputed fact that the Complainant entered into a contract of employment with the legal entity entitled Badlands Three TV Productions Designated Activity Company. It is clear therefore that, on a plain reading of the Act, his employer was Badlands Three TV Productions Designated Activity Company and not the Respondent. Similarly, it is clear that the Complainant was, on plain reading of the Act, an employee of Badlands Three TV Productions Designated Activity Company and not the Respondent.

The Court cannot accept that the Respondent, because it may be or have been an associated company or associated employer with Badlands Three TV Productions Designated Activity Company, became as a result the employer of the Complainant within the meaning of the Act. Any such conclusion would mean that Badlands Three TV Productions Designated Activity Company, a separate legal entity, was not the employer of the Complainant within the meaning of the Act, and any such conclusion would be incompatible with the application of the law to the facts of the matter.

For the reasons set out above the Court has concluded, within the meaning of the Act, that the Respondent was not at any material time the employer of the Complainant, and neither was he at any material time an employee of the Respondent.

Having reached this conclusion, the Court need not go further in deciding the within appeal.

Decision.

The Court decides that the within appeal must succeed. The decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CN	______________________
30 May 2024	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Cathal Nerney, Court Secretary.