TED2411

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00026908 (CA-00033630-003)

BACKGROUND:

Metropolitan Films International Limitedappealed the Decision of the Adjudication Officer to the Labour Court on the 24 January 2024 in accordance with Section 8 (1) of the Terms of Employment (Information) Acts, 1994 to 2012.  A Labour Court hearing took place on the 19 April 2024. 

The following is the Decision of the Court.

DECISION:

Metropolitan Films International Limitedappealed a decision of an Adjudication Officer (ADJ-00026908 CA-00033630-003, dated 15 December 2023) made in relation to a complaint by Mr Clive McCarthy taken under the Terms of Employment (Information) Act 1994 (“the Act”).

The Adjudication Officer found that Mr Clive McCarthy’s complaint under the Act was well founded.

Metropolitan Films International Limited lodged an appeal of that decision to the Labour Court on 24 January 2024.

The parties were notified that a hearing of the Court would take place in Dublin on 19 April 2024. In advance of the hearing date, Mr McCarthy's representative informed the Court that he was not proceeding with the case on health grounds, and that he had instructed her to withdraw the appeal. He extended his apologies to the Court and the representative of Metropolitan Films International Limited, who was copied on the correspondence.

Mr McCarthy's representative was informed that in the absence of a withdrawal of the appeal by the other party, whose appeal it was, the hearing remained scheduled to proceed on Friday, 19 April 2024. 

No application to postpone the hearing was received by the Court, and the hearing opened as scheduled on 19 April 2024. The Court noted that Mr McCarthy was not in attendance to rebut the appeal. When asked how it wished to proceed, Counsel for the Metropolitan Films International Limited said that as the purpose of the appeal was to set aside the decision it was appropriate for the Court to hear the appeal and evidence in relation to that matter.

For ease, the parties are referred to in this rest of this determination as they were at first instance.  Hence, Mr Clive McCarthy is referred to as “the Complainant”andMetropolitan Films International Limited as “the Respondent”.

Preliminary Matters

The Respondent submits that the Labour Court has no jurisdiction to hear the complaint and raises the following preliminary matters addressing its jurisdiction to hear the appeal: -

(i) the Respondent was incorrectly identified by the Adjudication Officer as the employer,

(ii) the Complainant did not file a valid complaint at first instance,

(iii) the relevant time limits for lodging the complaint, and

(iv) the Labour Court determined that the Complainant had not identified any employment relationship with the Respondent in a separate appeal taken under the Protection of Employees (Fixed-Term Work) Act 2023.

Summary of the Respondent’s Position 

 (i) the Respondent was incorrectly identified by the Adjudication Officer as the employer

The Respondent was not the Complainant’s employer and is not an appropriate party to be named to the complaint. There is no evidence whatsoever of any employment relationship between the Complainant and the Respondent.

During the period 26 June 2017 to 30 March 2018, the Complainant was employed as a PAYE employee in the role of stagehand by two separate entities: Badlands Three TV Productions DAC and VK Six Productions DAC. 

The Complainant’s employment with those two entities arose within the specific context of Section 481 of the Taxes Consolidation Act 1997, as amended, which makes tax relief available for film and television productions made in Ireland. Section 481 was an investor-led tax incentive scheme, and each production was required to be a standalone limited company.

Since 2015 the legislation requires the establishment of a ‘Producer Company’ which must establish and 100% own a ‘Qualifying Company’ (e.g. a ‘DAC’). The legislation requires the ‘Qualifying Company’ must exist solely for the purposes of production and distribution of one film or television programme. 

The Respondent referred to a list of 32 companies 100% owned by the Respondent pursuant to the 2015 change in S481 legislation, which includes the two named entities employed by the Complainant, Badlands Three TV Productions DAC and VK Six Productions DAC.

The Respondent is a production company that identifies material for film/tv projects and sources funding to develop projects with writers and directors. Once a project is financed and gearing up to enter production, a Special Purpose Vehicle (‘SPV’) is established to produce that project. All employees and contractors are engaged and paid by the SPV; the entire production is run through that SPV. Typically, the credits on a film/tv series mention the name of the originating production company, not the SPV.

The Respondent submits that the international standard practice in the industry is that funding from financiers is paid directly to a SPV or DAC. Most financiers do not wish to take any insolvency risk on a Producer Company, and so will only contract with a newly incorporated company that is not affected by other businesses in the producer group or have pre-existing security registered over it. 

The Respondent submits that the Adjudication Officer erred in her application of the concept of “associated employer” – a concept which is specifically provided for in the Protection of Employees (Fixed-Term Work) Act 2003. The term “associated employer” is simply not contained in the Terms of Employment (Information) Act.

In referring to Badlands Three TV Productions DAC as an “associated company” of the Respondent, the Adjudication Officer incorrectly confused the concepts of companies which may be associated corporate structures with separate legal personality, on the one hand, and the “associated employer” requirement of multiple employers who are themselves associated.

Furthermore, the interpretation by the Adjudication Officer of the term “associated employer” is entirely at odds with the express mandate and intention of the Oireachtas in enacting Section 481 of the Taxes Consolidation Act 1997.

The Adjudication Officer erred in making a mistaken value judgment as to what constitutes “quality employment”, and having made that error wrongly allowed it to influence her conclusion as to who the Complainant’s employers properly were.

The Respondent submits that s.481 does not compromise, or oust, the employment rights of employees. On the contrary, the Complainant’s statutory employment rights, at all times, remained fully intact against his employers.

The Respondent was at no time the Complainant’s employer within the meaning of that Act. The contractual documentation makes clear that the Complainant was never employed by the Respondent.

The Respondent relies on the decision of the Labour Court in Metropolitan Film Productions Limited v. Paul Hickey FTC/22/21 and Metropolitan Film Productions Limited v Stephen Preston FTD 2411.

 (ii) The Name of the Respondent on the Complaint Form

In the alternative and without prejudice to the foregoing, the Complainant did not file a valid complaint against the Respondent. The Complainant submitted his complaint under the Act against “Metropolitan Films” and the Adjudication Officer exceeded her jurisdiction in amending the name of the party against whom the complaint was brought.

The Adjudication Officer concluded that the Complainant was an employee of Metropolitan Films International Limited, that he had made an error in the naming of the Respondent, and that she had jurisdiction to correct this error under s. 41(16) of the Workplace Relations Act 2015.

The Respondent submits that in so doing the Adjudication Officer erred in law.

 (iii) The Relevant Limitation Period

In the alternative and without prejudice to the foregoing, the complaint was lodged to the WRC on 9 January 2020, outside the prescribed statutory limitation period.

The Complainant’s contract of employment came to an end on 30 March 2018.  The complaint is statute barred and the Adjudication Officer’s conclusion that the Complainant was on lay-off was factually and legally incorrect.

In circumstances where the complaints were lodged outside the statutory limitation period allowed, the Labour Court must set aside the findings of the Adjudication Officer in their entirety, including those made in respect of the employment of the Complainant by MFIL.

 (iv) The Labour Court determined in a separate appeal that the Complainant had not identified any employment with the Respondent.

Separately to the within appeal, the Complainant sought to pursue a complaint against the Respondent under the Protection of Employees (Fixed-Term Work) Act 2023.  That complaint was found by the Adjudication Officer at first instance to be statute barred. On appeal the Labour Court determined in FTD211 Metropolitan Film Productions Limited and Clive McCarthy that the Complainant had not identified any employment relationship with the Respondent, for precisely the same reasons as advanced by the Respondent in the instant case.

Evidence of Mr Stephen Burt

The Court heard witness testimony from Stephen Burt via remote video link. A number of documents were opened to the Court during Mr Burt’s evidence.

Mr Stephen Burt told the Court that he is a Line Producer and Production Manager in the film and television industry. He was engaged by Badlands Three TV Productions DAC as the Production Manager on Into the Badlands Season 3. He was responsible for hiring the crew and the day-to-day running of the production. There were approximately 250 people employed by that entity on that production.

The Complainant was employed by Badlands Three TV Productions DAC as a Stagehand and commenced employment on 26 June 2017. He remained employed until 11 August 2017.  He resumed working for Badlands Three TV Productions DAC from 12 March 2018 until 30 March 2018.

Mr Burt signed a Start Form at the commencement the employment relationship between the Complainant and Badlands Three TV Productions DAC.

Mr Burt also signed the contract of employment between Badlands Three TV Productions DAC and the Complainant. To the best of his knowledge the Complainant signed the first and last page of the document 4 September 2017. He did not witness the Complainant sign the document as contracts are distributed to employees for signing.

A termination of employment letter dated 4 August 2017 was issued to the Complainant advising him that his employment would end on 11 August 201. That letter was signed by the production supervisor who often issue correspondence on his behalf. Mr Burt could not recall why the contract was terminated at that time.

A termination of employment letter, dated and signed by Mr Burt on 26 March 2018, was issued to the Complainant advising him that his employment would end on 30 March 2018.

The use of fixed term contracts is a standard practice in the industry in Ireland and every country in the world.

The Relevant Law

The 1994 Act defines ‘employee’ as follows in section 1:

“employee” means a person 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 member of the Garda Síochána or the Defence Forces) or otherwise as 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 for the purposes of the (as amended by the Local Government Reform Act 2014), a harbour authority, a health board or an education and training board shall be deemed to be an employee employed by the authority or board, as the case may be;

The 1994 Act defines ‘employer’ as follows in section 1:

“employer”, in relation to an employee, means 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 subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer;

Deliberations

The Respondent raises a number of preliminary matters relating to the Court’s jurisdiction to hear the within appeal. 

Counsel for the Respondent submitted that while it is open to the Court to decide that it has no jurisdiction to hear the appeal having regard to any of the preliminary matters raised, the primary focus of the appeal before the Court was the incorrect naming of the Respondent.

In that regard, the Respondent’s submission is that the Labour Court does not have jurisdiction to hear the within complaint, as the Complainant was never employed by Metropolitan Films InternationalLimited.

The Court heard extensive submissions about the nature of the industry within which the Respondent operated and how the Complainant’s employment with two named entities arose within the specific context of Section 481 of the Taxes Consolidation Act 1997, as amended. The Court heard that those two named entities, Badlands Three TV Productions DAC and VK Six Productions DAC, areentirely separate legal entities to Metropolitan Films International Limited.

The appeal before the Court is a de novo appeal of an Adjudication Officer’s decision. The Complainant did not attend the hearing to rebut the appeal.  The only evidence presented to the Court was that of the Respondent. No evidence was presented to the Court to establish that the Complainant was ever in the employment of Metropolitan Films International Limited.

In light of the above, the Court finds that there is no evidence that Metropolitan Films InternationalLimited was at any material time the employer of the Complainant. Accordingly, the Court determines that it has no jurisdiction to hear the substantive matter.

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.

In circumstances where the Court has found no evidence that Metropolitan Films International Limited was the employer of the Complainant, it is not necessary for the Court to determine the other preliminary matters in relation to the Court’s jurisdiction to hear the appeal.

Decision

The Court finds that the Complaint under the Act is not well founded.

The Decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
AR	______________________
29 May 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Aidan Ralph, Court Secretary.