Newspaper Photographer's Employment Status Assessed by Labour Court

This week we look at a recent Labour Court case in which a newspaper photographer claimed to have been unfairly dismissed. The decision, in the case of Associated Newspapers Ireland Ltd t/a DMG Media Ireland v Dunne, UDD2260, turned on whether or not the photographer was an "employee" in circumstances where he was providing his services through a company. Our Adrian Twomey highlights the key points to note in the decision.


DMG Media publish the Irish Daily Mail, other newspaper and magazine titles and online content. Mr. Joseph Dunne apparently worked for the company, directly or indirectly, between 2003 and 2019. In 2009 the two agreed to change the basis on which Mr. Dunne was engaged. He established a limited liability company called Joe Dunne Photography Limited. From 1 January 2010 onwards, DMG Media contracted with Mr. Dunne's company for the provision of photography services. It was invoiced for those services on a monthly basis.


On 27 September 2019, DMG Media terminated the contract with Joe Dunne Photography Limited. The photography company submitted an invoice for the equivalent of three months' services in lieu of notice and that invoice was paid. The photography company continued to trade thereafter. Nonetheless, Mr. Dunne submitted an unfair dismissal claim to the Workplace Relations Commission (WRC) on 27 February 2020.


Photographer

The WRC found against Mr. Dunne, effectively concluding that he was an independent contractor rather than an employee and that he was not, therefore, protected by the Unfair Dismissals Act 1977 (as amended). He appealed the decision to the Labour Court. The Court heard his appeal on 14 June and 22 September 2022.


At the hearing, Mr. Dunne argued that he was really an employee and, therefore, protected by the Unfair Dismissals Acts because:

  • he was personally required to perform the services;

  • he worked in accordance with a roster determined by DMG Media;

  • he rarely supplied photographs to other publishers;

  • he worked full-time on assignments for DMG Media;

  • he was paid a fixed daily amount plus expenses; and

  • some equipment was provided by DMG Media.

In response, DMG media pointed out that:

  • Mr. Dunne was employed by his own company and received a salary from that company;

  • his company retained the copyright in all photographs and merely granted a licence to DMG to publish photographs supplied to it;

  • he provided his own camera equipment;

  • he was free to undertake work for others; and

  • he had never before challenged the status of his company as a service provider.

Mr. Dunne might well have won his case had he been paid directly by DMG Media and the Court was simply required to decide whether he was an employee or an independent contractor. That was not, however, the case in this instance. Rather, the Court concluded that "the interposition of a limited liability company between the Complainant and the Respondent in itself undermines the Complainant’s case that he was an employee of the Respondent." For that reason, his appeal was dismissed.


The Court's decision makes considerable sense. It is, after all, extremely hard to imagine that Mr. Dunne could reasonably have regarded himself as being an employee of DMG Media between 2010 and 2019 whilst at the same time owning and running a company that paid him a salary and invoiced the publisher.


Those who require advice in relation to employment law cases or who need representation before the WRC or Labour Court can contact our Adrian Twomey.







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