ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00037823

Parties:

	Complainant	Respondent
Parties	John Fearon	Irish Film TV Facilities Limited

Representatives

Self- represented

Ms Bébhinn Murphy, B.L., instructed by Bowler Geraghty & Co.

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00049255-001	21/03/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00049255-002	21/03/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00049255-003	21/03/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00049255-004	21/03/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00049255-005	21/03/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00049255-006	21/03/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00049255-007	21/03/2022

Date of Adjudication Hearing: 29/09/2025

Workplace Relations Commission Adjudication Officer: Máire Mulcahy

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

I explained the changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021. The parties proceeded in the knowledge that hearings are to be conducted in public, decisions issuing from the WRC will disclose the parties’ identities and sworn evidence may be required.

The complainant represented himself and gave evidence under affirmation.

The respondent was represented by Ms Bébhinn Murphy, B.L., instructed by Bowler Geraghty & Co.

Two company directors attended and gave evidence under affirmation.

Background:

The complainant has presented seven complaints alleging infringements of four different statutes.

The complainant worked as a truck driver for the respondent from circa 1993 up until January 2022.

He worked on average up to 15 hours a day, five days a week.

His average weekly wage was €750.

He submitted his complaints to the WRC on 21/3/2022.

Preliminary Issues.

Summary of Respondent’s Case:

The respondent raised several preliminary objections.

1.Incorrectly impleaded employer

The complaint was submitted against an incorrect entity, named Irish Film Location Facilities . The correct legal entity is Irish Film TV Facilities Ltd. The complaint should be dismissed as it is not properly before the WRC.

2.Employee status.

The complainant is not an employee. He was employed periodically as an independent contractor. The respondent provides services and goods for film production.

3.Statutory time limits

Without prejudice to the foregoing, the claims are statute barred . Neither does he have the requisite service required by the Acts. He was engaged to provide a service for a few days in January 2022, having not been required to provide to provide a service prior to December 2019.

The respondent asks that the complaints be dismissed.

Employee status.

Two Directors gave evidence concerning the complainant’s status as a sub- contractor.

Ms F, Company Director gave evidence under affirmation.

She is the complainant’s sister.

In 1998 both the witness and her co- director brother took over the family business. It was incorporated in 2015.

The complainant was not an employee. He was employed as a sub-contractor . Up until 2020 all personnel working for the company were sub- contractors.

That changed in 2020. They could afford to have employees. The majority of their 20 employees are now employed on contracts of service.

The complainant did not work with the company during 2020.

In Christmas 2021, the witness knew of the impending criminal trial facing the complainant with a possible custodial sentence. She decided to offer him work in Spain which would ten days in all including travel.

She stated that of the staff of 20, four are subcontractors.

She confirmed that of the 14 drivers , all but 4 were employees. The complainant never asked her if he could become an employee.

They bought him a BMW as a personal gift.

Mr F, Company co – director gave evidence under affirmation .

He originally was engaged as a sub- contractor as a mechanic

No one was paying Paye to Revenue.

In 2020, Revenue advised the respondent that staff should have employee status.

The complainant’s last job with the company was in 2019.

The complainant never asked him to recognise any employee rights.

The witness had no control over what time the sub- contractors commenced or finished their assignments.

They bought him a car as a gift

In January 2022 , his sister and co -director asked the complainant if he wished to travel to the Grand Canaries. He managed to get a passport at the last minute and did go to the Canaries, and he took the witnesses’ place.

Preliminary Issues

Summary of Complainant’s Case:

Incorrectly impleaded employer.

The complainant on being advised of the title of the correct legal entity and of the option of requesting an amendment, asked the adjudicator to agree to amend the title.

Complaint’s employment status.

The complainant was unable to provide accurate details of his start date with the respondent.

The complainant states that he was hired as a driver 32 years ago and that no one ever told him that he was a contractor. As far as he is concerned, he is an employee.

He stated that he worked 15 hours a day by 5 days a week. He was paid weekly.

The company supplied the truck. They decided where he was to go – his assignments and what he was to transport. He was paid into his bank account.

Statutory time limits.

On being asked to provide the dates of the contraventions of the Acts by the adjudicator, the complainant stated that he was unable to do so.

But contrary to the respondent’s statements, he stated that he did work during the period December 2019 –January 2022.

Cross examination of witness.

He stated that he was unaware that his sister and brother, who took over the family business in 1998, were contractors.

He always considered himself to be an employee.

He confirmed that he received no holiday pay

He confirmed that he had the option of declining a work assignment.

He was unable to ask anybody else to stand in for him if he was unavailable.

He accepted that he was not provided with a roster, that work assignments were intermittent ; he’d just receive a call to do some work. He acknowledged that he had been employed in other companies while working for the respondent. He had worked for a named courier service five times in the last 12 years, driving trucks for them. It was not a full-time assignment. He would drive 2-3 days in a months and was deducted PAYE with those other companies. He drove trucks for a company serving a large, named supermarket chain. He drove coaches to the airport , pre- covid and was deducted PAYE. He drove for a waste management company and had PAYE deducted.

If he had no work from the respondent for one week, he would ring the respondent

He paid for his own jackets and boots with the respondent.

The respondent never made any deductions from his salary.

The respondent failed to provide him with a contract.

He stated that he put in invoices to the company for his work. He received no pay slips from the respondent during a work assignment.

He received a cheque from the two directors in January 2022 and cashed it in the bank.

He was refused a bank account .

To the point that there were no entries from the respondent into his bank account after 2019, he stated that he was working for the respondent and was paid in 2022 via Revolut.

In January 2022 while on the ship to the Canaries, the other driver employed by the respondent told him that he was to go home.

Preliminary Issues

Findings and Conclusions:

Preliminary jurisdictional issues.

Incorrectly impleaded employer

The complaint form submitted to the WRC on 21/3/2022 containing the seven complaints named the respondent as Irish Film Location Facilities. The respondent argues that as the complaint has been brought against an entity that does not exist, the complaint must be dismissed. The correct title is Irish Film TV Facilities Limited.

The matter of correcting the respondent’s name was addressed in Auto Direct Ltd v Vasile Mateui, DWT1922. While the circumstances of the instant case differ somewhat to those pertaining in the appeal before the Labour Court, what they have in common are the following elements which were set out in DWT 1922:

“That party (the respondent) was fully aware of the Complainant’s complaints to the WRC. He knew precisely from whom the complaints were and to what the complaints referred. The respondent party has had a full opportunity to be heard and to answer those complaints. The Court is therefore equally satisfied that the employer will suffer no prejudice or injustice by its decision on this preliminary matter……. In arriving at this conclusion, the Court is also conscious of the High Court Judgment in O’Higgins -v- University College Dublin & Another (2013) 21 MCA wherein Mr Justice Hogan held:

‘’Even if the wrong party was, in fact, so named, no prejudice whatever was caused

by reason of that error (if, indeed, error it be)”’….

The Court continued as follows:

“In these circumstances, for this Court to hold that the appeal was rendered void by

reason of such a technical error would amount to a grossly disproportionate

response and deprive the appellant of the substance of her constitutional right of

access to the courts.”

The Court agreed to the amendment of the respondent’s name.

In the instant case, I find that the respondent was on notice of and apprised of the complaint and made no objection at the hearing to the complainant’s request to amend the respondent’s title.

I decide to correct the name of the respondent to reflect its correct legal title based on the absence of prejudice to the respondent and based on the aforementioned authorities. The corrected name is included in the decision.

Statutory Time limits with reference to CA-00049255-001, CA-00049255-002, CA-00049255-003, CA00049255-007.

I am obliged to determine if I have jurisdiction to hear these complaints.

The matter of determining a preliminary issue such as statutory time limits in advance of addressing the substantive complaints has been dealt with in several cases.

In Mary Sheehy v. Most Reverend James Moriarty [UD1264/2008] the Tribunal held as follows:

‘’the Tribunal was set up under statute by the Oireachtas and did not have the authority based on constitutional or natural law and justice principles to conduct a hearing where the claims were not instituted within the time periods set out in the legislation”.

In Brothers of Charity (Roscommon) Ltd. v. Marian Keigher [EDA101], the Labour Court issued a preliminary decision. The Labour Court referred to the judgments of Kenny J in Tara Explorations and Development Co. Ltd v. Minister for Industry and Commerce [1975] IR 242; and Hardiman J in B.T.F. v. Director of Public Prosecutions 2 ILRM 367. In the latter case Hardiman J held as follows

"It is often a difficult and delicate decision as to whether to try a particular issue as a preliminary

matter. In a case where a point is raised which in and of itself and without regard to anything

else may terminate the whole proceedings, clearly a strong case can be made for its trial as a

preliminary issue. The classic example is where the Statute of Limitations is pleaded. In other

cases, however, the position may be much less clear".

The authorities point to the requirement to determine the jurisdictional issue of compliance with the statutory limits in the first instance.

Cognisable period.

Relevant Law.

Section 41 (6) of the Workplace Relations Act, 2015 provides as follows:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”

Section 41 (8) states:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”.

The complainant submitted his complaints to the WRC on 21/3/2022.

The cognisable period for these complaints is 22/9/2021- 21/3/2022 as per section 41(6).

When asked by the adjudicator to identify the date of the contraventions under the Organisation of Working Time Act,1997, the complainant stated that he was unable to do so.

Though the evidence was contested concerning his service during the cognisable period 22/9/2021-21/3/2022, the complainant failed to produce a scintilla of evidence as opposed to a mere assertion that he had worked during this period. The respondent’s evidence that except for the January 2022 period of 2weeks, which was evidence based on documented payment records to the complainant, that he had not worked since December 2019,was more persuasive.

I find no evidence of contraventions of the Act of 1977 during the cognisable period.

I find that I do not have jurisdiction to hear complaints numbered CA-00049255-001, CA-00049255-002, CA-00049255-003, CA00049255-007 and submitted under the Organisation of Working Time Act,1997.

CA-00049255-004.Complaint under section 7 of the Terms of Employment (Information) Act, 1994

The contravention- if contravention it was -occurred on an unknown date in 1993.

The more persuasive evidence contained in a documented history of payments made to him, is that with the exception of 2 weeks in January 2022, the complainant ceased working on 20/12/2019.

Aside from the jurisdictional obstacle which section 41 (6) of the Workplace Relations Act, 2015, presents for the complainant, section 2 of the Act of 1994 as amended states:

“This Act other than for section 3(1)(A) shall not apply to employment in which the employee has been in continuous service for less than 4 consecutive weeks”

The evidence shows that the complainant cannot meet that threshold.

I find that I that I do not have jurisdiction to hear this complaint.

CA-00049255-005.Complaint under Section 8 of the Unfair Dismissals Act, 1977

Statutory Time limits.

Section 8 (2) of the Act of 1977, as amended, states

“A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015 to the Director General —

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,”

Furthermore section 2 of the Act of 1977 as amended excludes employees with less than a year’s continuous service.

While the onus is on the employer to prove that the dismissal was not unfair, a preliminary to that is the complainant’s compliance with statutory service requirements and time limits.

The oral and written evidence of the respondent, including the documented payments to the complainant which ended in December 2019 tips the evidence in favour of the fact that he ceased working with the respondent in December 2019 except for a 2-week period in January 2022. This is especially so as the complainant, faced with this evidence, was unable to produce even a whit of oral or written evidence to support his contrary assertions.

I find that I do not have jurisdiction to hear this complaint.

CA-00049255-006. Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

Section 3 of the Act of 1973 as amended denies jurisdiction to a brother or sister of the employer.

The complainant is a brother of the respondent and is therefore ineligible to seek to assert rights under this Act.

I find that I do not have jurisdiction to hear this complaint.

Having found that I do not have jurisdiction to hear these complaints due to failure to meet time limits, service requirements, and exclusions, an inquiry into his status as an employee is redundant as even if I were to find that he is an employee, such a finding could not surmount the fact that I do not have jurisdiction to hear the complaints submitted to the WRC on 21/3/2022.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-00049255-001. Complaint under section 27 of the Organisation of Working Time Act, 1997