EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1104/2014
MN554/2014
WT173/2014
CLAIM OF:
Luigi Ferrami
against
Sicim Ireland Limited
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
ORGANISATION OF WORKING TIME ACT 1997
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms J. McGovern B.L.
Members: Mr M. Noone
Mr J. Jordan
heard this claim at Dublin on 25th February 2016
Representation:
Claimant : Mr Roland Rowan B L instructed by Gerrard L. McGowan Solicitors, The Square, Balbriggan, County Dublin
Respondent : Purdy Fitzgerald Solicitors, Kiltartan House, Forster Street, Galway
The determination of the Tribunal was as follows:
Preliminary Issue
It was the respondent’s contention that the Tribunal had no jurisdiction to hear this case as the claimant neither worked, resided nor was domiciled in this State.
Conversely, the claimant maintained he came under the protection of the above Acts through the application of international law.
The Tribunal sought and received submissions from both parties on this issue.
It was the respondent’s contention that the Tribunal had no jurisdiction to hear this case as the claimant neither worked, resided nor was domiciled in this State and therefore the provisions of section 2(3)(a) of the Unfair Dismissals Act 1977 applies.
Conversely, the claimant maintained he came under the protection of the above Acts through the application of European Law and the general principles relating to the protection of workers. Further, it was claimed that the employment agreement between the parties provided that the ‘Courts of Ireland’ shall have exclusive jurisdiction in relation to the claimant’s employment.
The Tribunal sought and received submissions from both parties on this issue.
Determination
The Tribunal have considered the application and the helpful submissions provided by the parties in the within case.
The claimant is an Italian national who commenced employment with the respondent in or about August 2012 as a site superintendent in Basra, Iraq. While initially employed on foot of a fixed term contract, the contract was renewed therefore no issue arises in that regard for the purpose of the within claim. The applicant never resided or worked in this jurisdiction during the term of his employment. The claimant was employed by both the respondent and by Sicim SpA, registered in Italy in relation to his work in Basra and had two separate contracts of employment. The Tribunal are advised that separate proceedings exist against the Italian company concerning the claimant’s contract of employment therewith. The claimant’s employment agreement with the respondent was terminated on 21 January 2014 following which the within proceedings issued.
The respondent is a construction company providing services relating to the laying of pipelines in various countries across the world. The respondent is registered in Ireland but its business appears to be primarily conducted in other jurisdictions. The employment agreement between the claimant and respondent includes, inter alia, a clause stating that the agreement is ‘governed by the laws of Ireland and the Courts of Ireland shall have exclusive jurisdiction’.
Having considered the facts of the case and the submissions provided by the parties the Tribunal believe that the claim must fail. The Tribunal is bound by the provisions of the Unfair Dismissals Act 1977 (as amended). Section 2(3)(a) of the Act provides as follows
This Act shall not apply in relation to the dismissal of an employee who, under the relevant contract of employment, ordinarily worked outside the State unless—
i) he was ordinarily resident in the State during the term of the contract, or
(ii) he was domiciled in the State during the term of the contract, and the employer—
I) in case the employer was an individual, was ordinarily resident in the State, during the term of the contract, or
II) in case the employer was a body corporate or an unincorporated body of persons, had its principal place of business in the State during the term of the contract
The fact remains that the claimant was neither ordinarily resident in the State nor domiciled in the State at any stage during the term of the contract and therefore he is precluded from availing of the provisions of the Acts. What is disturbing is that the respondent has bound the claimant into a contract of employment that requires him to issue proceedings in this jurisdiction concerning the termination of his employment but given the particular facts of his case he can never succeed therein. This would seem contrary to the general provisions that should apply in relation the protection of workers. Unfortunately, even if this clause did not appear in the employment agreement the claimant would still fall foul of section 2(3)(a).
In the circumstances the Tribunal have no jurisdiction in this claim. Accordingly the claim under the Unfair Dismissals Acts 1977 to 2007 must fail.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)