UDD2414

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00020849 (CA-00027474-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 4 June 2020 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 4 April 2024. The following is the Decision of the Court:

DECISION:

This is an appeal by John Arkins (hereafter the Complainant) against an Adjudication Officer’s Decision ADJ00020849 CA-00027474-001 given under the Unfair Dismissals Act 1977 to 2015 (the Act) in a claim that he was unfairly dismissed by his former employer, Element Pictures Limited (hereafter the Respondent). The Adjudication Officer held that the Complainant’s employment fell outside the provisions of the Unfair Dismissals Acts 1977-2015 and the complaint fails.

Background

The Complainant alleges he was dismissed by the Respondent when he was not offered a job on the 1st April 2019. The fact of dismissal is in dispute, so it is for the Complainant in the first instance to establish that a dismissal took place. The Respondent denies the Complainant ever worked for them. This case is linked to MN/23/25. A question arose as to the name of the company that the complaint was against.  After taking instruction the Complainants representative confirmed to the Court that the complaint was against Element Pictures Limited. The Court engaged with the parties around the possibility of addressing whether or not Respondent in this case was the correct Respondent as a preliminary issue. However, the representative for the Complainant informed the Court that her client wished to give evidence to the Court and for the full case to be heard. The Court proceeded to hear the full case including all witness evidence.

 Summary of Complainant’s case and evidence

Ms Murray representative for the Complainant submitted that the Respondent is one of approximately 15 Irish Film production companies, all of similar scale that are engaged in continuous production of tv drama and live action films. There are also smaller companies who only do maybe two productions on average every 2/3 years so there is a significant level off layoff across the sector for which there is no contractual provision.  Ms Murray submitted that all the main production companies are members of a single organisation and would appear to operate on the basis of a cartel and suggested that this was evidenced by the fact that no production company would give Mr Arkins work after he appeared before a Committee of the then Department of Culture Heritage and Gaeltacht in 2018, who were investigating working  conditions and developments in the Irish film industry. The Complainant is a Supervising Stagehand who has worked in film production since 1994. He has had no disciplinary issues and was elected Shop Steward for the entire period. He engaged extensively with the Respondent throughout on industrial relations and other employment matters.

The Complainant commenced employment with the Respondent in 2004, he worked on various productions year on year, and not for short periods. He was there before shooting commenced to erect sets and he was there after the shoots to strike the sets. From 2012 he worked back-to-back for a continuous 4-year period on a tv series called “Ripper Street.” The practise has evolved in the industry where the crew is laid off even though there is no provision for same in the contract and periods of lay off can vary. In the case to hand the Respondent left the country to undertake production elsewhere and did not return to Ireland until 2019. When contracted the Complainant is exclusively contracted to the production he is working on and cannot engage in other employment notwithstanding his agreement provides for a working day of 8.30-6,30pm Monday to Thursday and 8.30-5.30 on Fridays with a 6th and 7th day on overtime basis and night shoots where required. The Complainant was placed on layoff after Ripper Street IV concluded in 2016, and continued on same until 1st April 2019 when the Respondent refused to re-instate him on a new project they were undertaking. The Complainant will give evidence that he was not a Production Buyer as alleged by the Respondent and that he did not sign the schedule D contract they are seeking to rely on.

 The Complainant in his evidence in chief confirmed that he started work with Element Pictures Ltd in 2004/2005. He believed that he worked for Element Pictures Ltd because he dealt with Mr Lowe. He had met him through Screen Productions Ltd.  He stated he had engaged in numerous negotiations with Mr Lowe and other individuals in terms of the rates of pay and other relevant terms and conditions for staff working in the industry over the years. The Complainant confirmed he was never a Production Buyer, and the grade or job title Construction Buyer does not exist in the industry. He stated he was a Supervisor Stagehand for the full duration of his employment. In the industry there were four main Construction Managers, and you could work for anyone of them. He believed he was always paid by Mr Lowe’s company. It was his evidence that he was regularly in contact with Mr Lowe over the years and he therefore assumed he was employed with Mr Lowe’s company Element Pictures Ltd.

In terms of mitigation of loss, the Complainant confirmed he went straight into another production after Ripper Street IV with a different production company and was employed until 31st August 2018. He sent CVs to a number of places and secured some casual work. He eventually secured a taxi licence and hired a car to work from.

Under cross examination from Mr Mc Dowall BL the Complainant accepted that Kilternan films had produced Ripper Street IV and that other companies had produced the earlier series. He confirmed that he was aware that Kilternan Film Productions Ltd was dissolved in 2016. He accepted that when he spoke to Mr Lowe in 2019, Mr Lowe told him to apply to the Construction Manager. He applied to the Construction Manager but got no reply, so he knew he was not getting the job. He understood that the Construction Manager was employed by Mr Lowe. He couldn’t recall the name of the production he did not get the job on, but accepted it was a production titled ‘Herself’.

The Complainant stated that he believed Mr Lowe was filming outside of Ireland for three years from 2016 to 2019. It was put to the Complainant that he had in fact worked on productions that Mr Lowe was involved with in 2017 and 2018 in Ireland, and that he was engaged by the relevant entity carrying out the production. The Complainant accepted that and that it did not tie in with his submission to the Court where he stated the last production he had worked on was for Element Picture Ltd in Ripper Street VI in 2016. The Complainant stated that he wanted to clarify that he was referring to paid work. He stated that during that period he was working for another production company and being paid by them, but he would be asked to go over and do some jobs on those other productions. He said he was often asked by Mr Lowe if he was working on one production to go over and give a hand on another production that Mr Lowe would not necessarily be involved in. It was a feature of the industry.

The Complainant confirmed that he was only employed as a PAYE worker on one occasion in the industry. He stated that he had been assessed by the SCOPE section of the Department of Social Welfare who had confirmed he was an employee. He confirmed that he did not have a copy of the Scope report in his submission. He confirmed he had an accountant and tax advisor who paid his taxes. He accepted that he was transferred to schedule D. He confirmed that he worked with Mr McManus a construction Manager but did not accept that he was his second in command. He accepted that he worked with Mr Mc Manus on other projects that Element Pictures Ltd were not involved in. He also accepted that Mr Mc Manus was not an employee of Element Pictures Ltd.

He confirmed that he was taking a similar complaint against another production company for the same time period as he believed he was working full time for both but then in between projects he was on lay off and could then work for the other company.  The Complainant accepted that he could only work fulltime for one company at any given time. In respect of his tax returns for the period 2016 to 2019 the Complainant stated that was his personal business.

 It was put to the Complainant that it was his sworn evidence that he was dismissed by Mr Lowe at the meeting of 1st April 2019. The Complainant accepted that was his evidence, he also accepted that Mr Lowe on numerous occasions had told him he was not an employee of Element Pictures Ltd. He agreed with Counsel that at the meeting on the 1st April 2019 Mr Lowe had not mentioned the Oireachtas Committee hearing, and had told him to contact the Construction Manager about getting work.

It was the Complainant’s evidence that he did not sign the Schedule D contract and the signature on it was not his. He stated that he had gone to the Gardai who had confirmed to him that it was not his signature. He accepted that something similar had happened in another case where he disputed the signature on the contract was his.  He also denied that he had signed the invoices or submitted them. In order to be paid he completed time sheets and gave the time sheets to Mr Mc Manus secretary. He accepted that when he was working on Ripper Street IV, he was paid by Kilternan Film Productions Ltd. It was his evidence that he did not know if Element Pictures Ltd ever paid him. He also accepted that on each occasion he worked he was paid by the appropriate DAC company. The Complainant stated that he accepted that the DAC makes the movie but Element Pictures Ltd had an obligation to ensure that he was taken on by the relevant DAC. He believed that Mr Lowe should have told the Construction Manager on the project in April 2019 to employ him.

 Ms Murray confirmed that it was not disputed that Kilternan Film Productions was the DAC for series IV of Ripper Street. In response to the issue raised by the Court that the documents before the Court suggested that the shareholder company for Ripper Street IV was Element Pictures Productions Limited and not Element Pictures Limited and the CRO reports opened to the Court would indicate that they are two separate companies, has the complaint been taken against the wrong company?

Ms Murray submitted that when you review the CRO documents two Directors, and two Shareholders (same two people) are the same in both companies, and therefore it is their submission that they must be related companies, so it is open to the Complainant to take a complaint against Element Pictures Ltd or Element Pictures Production Limited.

 It is the Complainant case that he was employed by Elements Pictures Ltd and when they did not offer him a position in 2019, he was unfairly dismissed.

Summary of Respondent’s submission and evidence.

Mr Mc Dowell BL on behalf of the Respondent informed the Court that the Respondent has offices in Dublin, Belfast and London and works across production for cinema and television.  He submitted that the TV and Film industry operates under a unique set of practises underpinned by a specific statutory regime. Its core nature is that it is a freelance industry, not just for cast and crew but for producers also, and every production is unique.

It is a legislative requirement for film and television programmes made in Ireland that a separate special purpose vehicle or more recently a Designated Activity Company (DAC) be established by the Irish Producer for each individual production in order to avail of the appropriate tax measures provided for in the legislation. It is a requirement of the S481 legislation that the DAC incurs all the production spend in Ireland and engages all the employees and contractors and service providers for the applicable film or television programme.

Once a production is completed and delivered to the financiers, the DAC is dissolved having been audited and submitting a compliance report to the Revenue Commissioners. It is a Revenue requirement that there is a Qualifying Company (the DAC) and a Producer Company which must be the sole shareholder of the Qualifying Company. The Producer Company makes the application for the Section 481 credit rather than the Qualifying Company.

In the case of Ripper Street IV, the Producer Company was Element Pictures Productions Limited which is a separate legal entity to Element Pictures Limited. In support of this contention Mr Mc Dowell BL opened CRO documents for Kilternan Film Productions Limited which showed that the sole shareholder was Element Pictures Productions Limited. He also opened documents in respect of Element Pictures Productions Limited which is now Sackville Film and Television Productions Limited and Element Pictures Limited supporting his contention that they are separate legal entities.

It is not disputed that they have some Director’s in common but that does not mean they are the same or linked companies. Mr Mc Dowell BL submitted it is clear from the documents available to the Court that the Complainant was last engaged by Kilternan Film Productions Limited, the Qualifying company specifically established for the fourth series of Ripper Street. The Complainant was issued with an independent contractor Schedule D crew contract dated 26th April 2016 and he was required to submit invoices to be paid.

Mr Andrew Lowe a joint Managing Director with Element Pictures Limited in his evidence to the Court stated that Element Pictures Ltd has about 44 fulltime employees between Cinemas and Distribution and about 30 part-time staff. It was his evidence that the Complainant had never worked for the Respondent and was never paid by them. Ripper Street series 4 was produced by Kilternan Film Productions which is now dissolved, but at the time they would have employed a mixture of employees and contractors. He estimated at the time that out of about 200 people 65% would have been direct employees of Kilternan Films Productions Ltd.  It was his understanding that the Complainant was employed on a schedule D contract. Element Pictures Ltd has not been an applicant for section 481 funding as far back as he can remember.

He confirmed he had engagements in the past with Mr Arkins in his role as founder member of the IFWA and when he was a SIPTU member. Mr Lowe confirmed that during the period 2016 to 2019 he was involved in projects in Ireland. He also confirmed that he is a director of a number of companies all of which are listed on the CRO records for Element Films Limited and includes Element Pictures Productions Limited. In terms of productions there is a standard manual that contains all the relevant forms for payments etc, and this is given to the producer at the start of the process. The line producer runs the budget and sits down with the Construction Manager to hire crews and manage the budget. The Directors of the Company are not normally on the set.

He confirmed that he could not remember the context for the meeting on the 1st April 2019 but he did not recall it being specifically about the Complainant looking for a job. He did not recall the Complainant on that day asking him for a job but if he did, he would have told him to contact the Construction Manager. He felt the discussion was more general, about issues in the industry. Mr Lowe confirmed that the fact of the Complainant appearing before an Oireachtas committee was not an issue for him. He denied that as alleged by the Complainant, himself and Mr Flynn negotiated to share staff, as Mr Flynn was his competitor in the industry.

Ms Murray in cross examination put it to Mr Lowe that he had signed a local agreement with BATU in 2012 to cover Ripper Street and he confirmed that he had. 

Mr Mc Dowell BL submitted that Kilternan Film Productions DAC was a separate legal entity to Element Pictures Limited and subject to Section 481. That legal entity was dissolved on the 22nd August 2018. The Complainant has failed to establish that he was ever employed by the Respondent and/ or that a dismissal occurred on the 1st April 2019.

The applicable law

Section 1 of the Act defines constructive dismissal in the following manner.

“thetermination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,”

Section 6(1) of the Act states

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

Issues for the Court

As dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act. However, the first issue the Court needs to consider is whether the Complainant was employed by this Respondent.

Discussion

The Court afforded the Complainant’s representative time to take instruction as to whether Element Film Limited was the company that he was taking his complaint against. After a break to take instructions Ms Murray representative for the Complainant confirmed to the Court that it was their position that Element Film Ltd was his employer when he had worked on Ripper Street IV and when he was laid off in 2016.  Mr Mc Dowell BL on behalf of the Respondent stated categorically that the Complainant had never worked for the Respondent, was never paid by the Respondent and that the Respondent was not the Producer Company for Ripper Street IV. The documents opened to the Court from the CRO support that position. It was not disputed between the parties that Kilternan Films Production Ltd was the DAC for Ripper Street IV. The CRO documents shows that the Producer company was Element Pictures Productions Limited which is not the Respondent.  The CRO documents in respect of Element Pictures Productions Limited and Element Film Limited show they are two separate legal entities albeit with some crossover in terms of Directors.

Determination

The Complainant has failed to establish that he was at any time employed by the Respondent in any capacity and therefore his complaint must fail.

The Complainant’s complaint is not well founded. The appeal is rejected.

The decision of the Adjudication Officer is affirmed.

The Court so Determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
TH	______________________
01 May 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.