FTD223

1. Appeal Of Adjudication Officer Decision No ADJ-00025790.


BACKGROUND:

2. This is an appeal by Mr Paul Hickey (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00025790, dated 8 April 2022) under the Protection of Employees (Fixed-term Work) Act 2003 (‘the Act’). Notice of Appeal was received by the Court on 29 April 2022. The Court heard the appeal in a virtual courtroom on 11 November 2022. The Complainant gave evidence on affirmation. No witness was proffered on behalf of Metropolitan Film Productions Limited (‘the Respondent’).




DETERMINATION:

The Factual Matrix:

The Complainant has worked as a Construction Chargehand in the film industry for some twenty-five years pursuant to a series of fixed-term contracts of employment. It is common case that his most recent engagement in that capacity was pursuant to a specified purpose contract he entered into with Badlands Three TV Productions DAC. That engagement commenced on 26 July 2017 and concluded on 27 April 2018. The Complainant was laid off for the period from 18 December 2017 to 7 January 2018 as production ceased for the Christmas period. The Complainant has not received any further offers of employment in the film industry since April 2018.

The Complainant’s Case:

The Complainant submits that he has been penalised by the Respondent within the meaning of section 13 of the Act arising from the latter’s failure to re-engage him as an employee in or around November 2019 when a number of his former colleagues were, at that time, re-engaged to construct a set for a new production. The Complainant submits that the statutory period of six months within which a complainant under the Act is permitted to refer a complaint to the Workplace Relations Commission should be deemed to run from that date. The Complainant referred his complaint under the Act on 11 December 2019.

The Respondent’s Case:

The Respondent submits that the Complainant was never employed by it and that he was at all material times an employee of a distinct and separate legal entity, Badlands Three TV Productions DAC. The Respondent further submits that the Complainant was employed by the latter company pursuant to a specified purpose contract which was lawfully terminated on 27 April 2018 such that the Complainant cannot be considered to have been on lay-off after that date. Finally, the Respondent submits that the six-month limitation period should be deemed to run from the date of the Complainant’s date of termination and not from an unspecified date in November 2019 and that the Complainant’s claim should therefore be deemed to be out of time.

The Evidence:

The Complainant’s direct evidence to the Court was very cursory. However, he confirmed under affirmation that he signed the contract of employment with Badlands Three TV Productions DAC, referred to earlier and a copy of which was exhibited in the papers before the Court. Under cross-examination, the Complainant agreed with the Respondent’s representative that he had been engaged under that contract for the production of the third series of Badlands which concluded in April 2018. The Complainant likewise agreed that he did not refer his complaint under the Act to the Workplace Relations Commission within twelve months as it was not received by the Commission until December 2019.

Discussion and Decision:

There is no evidence before the Court to establish that the Complainant was ever in the employment of the Respondent. The evidence that was before the Court – in the form of a written contract signed by the Complainant – indicates that the Complainant was employed by Badlands Three TV Productions DAC on a specified purpose contract that commenced on 26 July 2017. In direct evidence and under cross-examination, the Complainant confirmed that he was engaged for the aforementioned period under the said specified purpose contract. It is common case that the Complainant ceased working under that specified purpose contract on 27 April 2018.

It follows that the incorrect Respondent has been impleaded in the within proceedings.

It is not, therefore, necessary for the Court to determine the issue of whether or not the Complainant’s originating complainant was referred to the Workplace Relations Commission within the statutorily permitted timeframe for so doing.

The appeal accordingly fails and the decision of the Adjudication Officer is varied for the reasons set out above.

The Court so decides

	Signed on behalf of the Labour Court
	Alan Haugh
SL	______________________
15 November 2022	Deputy Chairman