TED251

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00045091 (CA-00046821-001)

BACKGROUND:

The Employer appealed the Decision of the Adjudication Officer to the Labour Court on the 20 March 2024 in accordance with Section 8 (1) of the Terms of Employment (Information) Acts, 1994 to 2014.  A Labour Court hearing took place on the 09 January 2025. 

The following is the Decision of the Court.

DECISION:

1. Background to the Appeal

This is an appeal on behalf of Metropolitan Films International Limited (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00045091/CA-00046821-001, dated 20 February 2024) under the Terms of Employment (Information) Act 1994 (‘the Act’). Notice of Appeal was received in the Court on 20 March 2024. The Court heard the appeal in Dublin on 9 January 2025. The Complainant declined to give evidence at the hearing. Mr David McLoughlin gave evidence on behalf of the Respondent.

Mr David Brady’s (‘the Complainant’) originating complaint under the Act was received in the Workplace Relations Commission on 25 October 2021. The period comprehended by the Complaint under the Act is, therefore, 26 April 2021 to 25 October 2021.

2. Brief Summary of the Relevant Factual Background

It is common case that the Complaint was employed as a painter by Clocktower Productions DAC between 26 April 2021 and 20 August 2021. He resigned that employment on the latter date in order to commence employment on 23 August 2021 with Moorehaven S1 Productions DAC. The Complainant was dismissed from that employment on 23 August 2021 and paid one week’s payment in lieu of notice. The Complainant never entered into a contract of employment with the Respondent to the within appeal.

3. Preliminary Issue

It is submitted on behalf of the Respondent that no employment relationship existed at any time between the Complainant and the Respondent and, in those circumstances, the within appeal should succeed.

The Complainant’s Representative, Ms Murray, made a submission in relation the relationship between the Respondent, on the one hand, and Clocktower DAC and Moorehaven S1 DAC, on the other. Ms Murray submitted that the latter entities are wholly owned subsidiaries of the Respondent within the meaning of the Companies Act 2014. She described Clocktower DAC and Moorehaven SI DAC as non-trading entities who are fully dependent on the Respondent for funding. She specifically stated that it was her understanding that the Respondent paid the wages of all staff employed by its subsidiary companies (of which she said there are at least eight-eight). She invited the Court to conclude, on the basis of the foregoing, that the Respondent was, therefore, the proper Respondent in the within appeal. Asked by the Court, if she was in a position to adduce evidence that the Respondent was the Complainant’s employer within the meaning of the Act, she replied that she was not in a position to do so as she “could not prove a negative”. She also confirmed, for a second time, that it was not her intention to put the Complainant in evidence.

4. Evidence of Mr David McLoughlin

The witness told the Court that he is a director of Metropolitan Films International Limited, Clocktower Productions DAC and Moorehaven S1 Productions DAC and that he is familiar with the books and records of each of the aforementioned companies. He also told the Court that the Complainant was never employed by the Respondent company.

Counsel directed the witness to a number of documents included in the Respondent’s bundle. The first of those documents was confirmed by the witness to be a copy of the Certificate of Incorporation of Clocktower Productions DAC dated 11 January 2021.

The witness confirmed the second document to be a PAYE Staff Form/Contract issued by Clocktower Productions DAC to the Complainant in respect of his employment on the production of ‘Disenchanted’. The document notes the Complainant’s start date for the employment in question as 16 March 2021 and bears a signature purporting to be the Complainant’s and the date of 12 March 2021.

The witness then told the Court that the Complainant’s employment with Clocktower Productions DAC was terminated by the Complainant’s resignation on 20 August 2021 in circumstances where the Complainant had chosen to take up alternative employment with Moorehaven S1 Productions DAC with effect from 23 August 2021.

When asked by Counsel about Ms Murray’s submission in relation to the payment of wages and salaries to employees of the Respondents wholly owned subsidiary companies such as Clocktower Productions DAC and Moorehaven S1 Productions DAC, the witness said that each individual DAC is fully-funded for its respective production and that all outgoings of that DAC, including employees’ wages, are paid in full by the DAC itself and that that is confirmed by the accompanying payslips issued by, and in the name of, the DAC in question.

Under cross-examination, the witness confirmed that the Complainant had made a data subject access request to the Respondent on 21 October 2021 and that in response thereto the Respondent had provided the Complainant with the personal data it held in relation to him. Ms Murray then asked the witness to explain why the Respondent was in possession of such personal data if the Complainant was not its employee. The witness said that the Respondent holds such data on behalf of its subsidiaries.

Ms Murray then questioned the witness in relation to the manner in which the productions undertaken by the Respondent’s subsidiary companies are funded. The witness said that the source of funding differs from production to production. He said that, for example, the production of ‘Disenchanted’ was fully funded by Disney. According to the witness, the Respondent receives the funding in each case but that it is immediately transferred to the relevant DAC and spent by it thereafter.

5. Discussion and Decision

In circumstances where a Respondent disputes that a Complainant was in its employment during the cognisable period, or at all, the burden of proof falls on the Complainant to establish that he/she has impleaded the correct Respondent. The Complainant in this appeal has not done so and through his Representative told the Court that he is not in a position to do so. It follows, therefore, that the appeal must succeed. The Court, therefore, sets aside the decision of the Adjudication Officer in full.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
ÁM	______________________
10th January 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Áine Maunsell, Court Secretary.