EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
UD1632/2011
Employee - claimant
Against
Employer - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. T. Ryan
Members: Mr C. Lucey
Mr C. Ryan
heard this claim at Dublin on 7th June 2013
Representation:
Claimant: in person
Respondent: no appearance by or on behalf of the respondent
Summary of Evidence
The Tribunal is satisfied that all parties were properly notified of the hearing. There was no appearance by, or on behalf of, the respondent.
By virtue of Section 6 (1) of the Unfair Dismissals Act 1977 every dismissal is presumed to be an unfair dismissal until the contrary is proven.
“6.—(1) 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”.
It is therefore a matter for the employer to go into evidence first and establish to the satisfaction of the Tribunal that the dismissal of the claimant was fair having regard to all the circumstances.
As the Respondent was not present the Tribunal heard the uncontested evidence of the claimant who testified that he commenced employment on the 25 February 2008. He applied for a part time health course and, prior to signing up for the course in April 2011 he sought permission from the store manager who agreed he could work part time to fit in with his course. In July 2011 when he requested time off for exams he was refused permission and was forced to leave his employment in order to sit his exams. His employment ended on the 21 July 2011.
Determination
The respondent did not attend, and was not represented at the hearing. A letter dated the 5th February 2013, from the Joint Administrators of the respondent, confirmed, inter alia:
- their appointment by the English High Court on the 26th March 2012;
- that “Administration is a UK Insolvency Procedure” and
- “In accordance with European Council Regulation (EC) No.1346/2000, Administration takes precedence over any local legislation. Administration provides that no legal process can be brought or continued against the company without the consent of the administrators or the permission of the court. At this stage, and in the interest of all creditors, the administrators do not consent to the commencement or continuance of any proceedings against the company”.
The Tribunal does not deal with cases before it through correspondence. Indeed by letter dated the 14th February 2013 the administrative arm of the Tribunal wrote to the respondent, in inter alia, the following terms:
“You will appreciate that the Tribunal Secretariat is an administrative body only of the Employment Appeals Tribunal. Please note that only a claimant, or a claimant’s representative, can withdraw a case from the Tribunal. In the absence of a formal withdrawal, the listing for hearing of this case cannot remain on hold indefinitely, and accordingly in this regard, a formal notice of hearing will issue in due course. Thereafter, all issues in relation to the case will be a matter for a Division of the Tribunal.”
If the respondent wished to make a jurisdictional point it should have appeared or instructed a representative to appear on its behalf with its submissions as to why the Tribunal did not have jurisdiction to hear the claim because of European Council Regulation 1346/2000. Notwithstanding the non-appearance/non-representation of the Respondent the Tribunal considered the relevant parts of this Regulation.
Under Article 4 (1) of the regulation the law which is applicable to the insolvency proceedings, is the law of the Member State within the territory of which the proceedings were opened: the Lex Concursus.
Article 4 (1) states:
“Save as otherwise provided in this regulation, the law applicable to insolvency proceedings shall be that of the member state within the territory of which such proceedings are opened, hereafter referred to as the State of the opening of proceedings”
There are two categories of exceptions to the principle of the Lex Concursus. The first category of exceptions can be found in Articles 5 to 7. These exceptions are `material exceptions' and are not relevant to the case before the Tribunal.
The second category of exceptions can be found in Articles 8 to 15. These are exceptions of a private international law nature and refer to a law other than the Lex Concursus. The effects of the insolvency proceeding on employment contracts are not governed by the Lex Concursus, but by the law which is applicable to the contract of employment, the Lex Causae. This is set out in Article 10 of the Regulation.
Article 10 states:
“The effects of insolvency proceedings on employment contracts and relationships shall be governed solely by the law of the Member State applicable to the contract of employment”.
The Tribunal took note of the strong wording in this Article which states that employment contracts are governed “solely” by the law of the member state applicable to the contract of employment.
Although the claimant did not have a written contract of employment the Tribunal is satisfied that he worked under an implied contract of employment in Ireland and his contractual relationship with the respondent is subject to, and governed by, Irish law.
Even though the insolvency proceedings commenced in England, the Tribunal is satisfied that it has jurisdiction to hear the claim before it by virtue of Article 10 of the Regulation.
Having heard the uncontested evidence of the claimant the Tribunal determines that the claimant was constructively dismissed. The Tribunal further determines that compensation is the most appropriate remedy and awards the claimant €30,000 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)