ADJ-00007492

Complainant

Respondent

Anonymised Parties

A Channel Manager

A Manufacturing Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00009980-001

         1/3/ 2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00009980-002

1/3/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00009980-003

1/3/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00009980-004

1/3/2017

The complainant was employed by the Respondent from 1st July 2013 until 27th January 2017. The complainant’s signed contract of employment stated that the salary for the position was £42,750 per annum. The complainant is claiming Constructive Unfair Dismissal under the Unfair Dismissals Act, 1977-2015 and has also submitted complaints under the Payment of Wages Act, 1991, the Terms of Employment (Information) Act, 1994 and the Organisation of Working Time Act, 1997

. Additional information was requested from the parties at the hearing of this matter. The most recent corresponddence on the complaints was received on 21st March 2018.>

The respondent raised a preliminary point in relation to the jurisdiction of the Workplace Relations Commission to adjudicate on the complaints as submitted. The respondent’s position is that the complainant’s employment was governed by reference to UK Law.

The respondent stated that it was not relying on the choice of jurisdiction rules under Brussels 1 recast (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters). The respondent stated that it is relying on the choice of law rules under Regulation (EC) No 593/2008 (Rome 1).

The respondent stated that Article 8.1 of Rome 1 applies to the complainant’s employment. The contract at Section 34 expressly states:

“The construction, interpretation and performance of this Agreement will be governed by the laws of England and Wales to the exclusive jurisdiction of whose courts the parties agree to submit.”

The respondent stated that the governing law cannot be determined in line with Article 8.2; by virtue of where the work was habitually carried out as it spanned two jurisdictions. In those circumstances the respondent contends that in accordance with Article 8.3 of Rome 1 the governing law is determined by the place of business where the employee was engaged i.e. the UK.

The respondent also stated that in accordance with Article 8.4 the governing law can be determined by taking into account the circumstances as a whole and to which country the contract is more closely connected. The respondent referred to the case of Schlecker- v- Boedeker (C-64/12) [2013] ICR 1274 in that regard.

The respondent contends that the complainant lived in Northern Ireland, paid income tax and social security contributions to the UK authorities and had availed of statutory maternity pay in accordance with UK law on two occasions. In addition, the complainant was paid in sterling and operated a sterling expense account.

The respondent contends that, as agreed between the parties, the laws of the UK would apply to the contract of employment and as the WRC has no jurisdiction in determining compliance with UK law, the complaints must fail.

The complainant stated that the existence of a contractual clause is not determinative of the issue and that in line with Rome 1, all the circumstances of the working relationship should be considered. The complainant stated that the intention had always been to enter into an Irish contract but that she had agreed to enter into an English contract temporarily to facilitate an early commencement of employment. The complainant stated that the majority of her work was carried out in the Republic of Ireland and on the basis she is entitled to have her complaints heard by the WRC.

In relation to this preliminary point, I refer to the European Commission’s Practice Guide on the jurisdiction and applicable law in international disputes between the employee and the employer and the provisions of the Brussels 1 Regulation (recast) (EU) No. 1215/2012 (replacing Brussels 1 Regulation 44/2001/EC and effective from 10th January 2015) and Rome 1 Regulation (EC) No. 593/2008 (revising the 1980 Rome Convention). Both contain special provisions to determine which courts have jurisdiction over disputes relating to individual contracts of employment and the applicable law, respectively.

The Practice Guide provides as follows:

“These special provisions derogate from general principles on jurisdiction and applicable law with the aim of protecting employees as the weaker party to the contract. Generally, those special provisions allow the protected party to be sued in the courts of his/her own domicile, but gives that party a choice of jurisdiction when he/she is the claimant” and

“In disputes between the employee and the employer, the main connectingfactor between the Brussels 1 Regulation (recast) and the Rome 1 Regulation linking the dispute with a particular court and a particular applicable law is the ‘place where the employee habitually carries out his work.’ This means that the employee has access to the courts in the Member State where he/she habitually carries out his/her work and that that Member State’s law will generally apply to solve the dispute, even when work is carried out in more than one country. The Regulations aim to prevent proceedings from being brought in multiple jurisdictions and being determined under multiple applicable laws.”

Brussels 1 Regulation

Section 5 of Brussels 1 (recast) provides as follows in relation to jurisdiction over individual contracts of employment:

Article 20

1.      In matters relating to individual contracts of employment, jurisdiction shall be determined by this Section, without prejudice to Article 6, point 5 of Article 7 and, in the case of proceedings brought against an employer, point 1 of Article 8.

2.      Where an employee enters into an individual contract of employment with an employer who is not domiciled in a Member State but has a branch, agency or other establishment in one of the Member States, the employer shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that Member State.

Article 21 

An employer domiciled in a Member State may be sued:

(a) in the courts of the Member State in which he is domiciled; or

(b) in another Member State:

(i) in the courts for the place where or from where the employee habitually carries out his work or in the courts for the last place where he did so; or

(ii) if the employee does not or did not habitually carry out his work in any one country, in the courts for the place where the business which engaged the employee is or was situated.

An employer not domiciled in a Member State may be sued in a court of a Member State in accordance with point (b) of paragraph 1.

Article 22

1.      An employer may bring proceedings only in the courts of the Member State in which the employee is domiciled.

2.      The provisions of this Section shall not affect the right to bring a counter-claim in the court in which, in accordance with this Section, the original claim is pending.

Article 23

The provisions of this Section may be departed from only by an agreement:

(1) which is entered into after the dispute has arisen; or

(2) which allows the employee to bring proceedings in courts other than those indicated in this Section

Rome 1 Regulation

The respondent relied on Article 8 of Rome 1 which states as follows:

1.      An individual employment contract shall be governed by the law chosen by the parties in accordance with Article 3. Such a choice of law may not, however, have the result of depriving the employee of the protection afforded to him by provisions that cannot be derogated from by agreement under the law that, in the absence of choice, would have been applicable pursuant to paragraphs 2, 3 and 4 of this Article.

2.      To the extent that the law applicable to the individual employment contract has not been chosen by the parties, the contract shall be governed by the law of the country in which or, failing that, from which the employee habitually carries out his work in performance of the contract. The country where the work is habitually carried out shall not be deemed to have changed if he is temporarily employed in another country.

3.      Where the law applicable cannot be determined pursuant to paragraph 2, the contract shall be governed by the law of the country where the place of business through which the employee was engaged is situated.

4.      Where it appears from the circumstances as a whole that the contract is more closely connected with a country other than that indicated in paragraphs 2 or 3, the law of that other country shall apply.”

In relation to this point I find that the existence of the choice of law clause is not determinative of the issue as the provisions of Paragraphs 2, 3 and 4 of Article 8 would apply if no choice of law clause was included in the complainant’s contract of employment. In any event the choice of law clause would not have met the requirements of Article 23 of Brussels 1.

The respondent stated that the governing law cannot be established on the basis of where the complainant habitually carried out her work as provided for in Article 8 Paragraph 2 of Rome 1 as the work spanned both the Republic of Ireland and Northern Ireland. The respondent also stated that the governing law could be chosen by reference to Article 8, Paragraph 3 of Rome 1.

The complainant stated that as the majority of the complainant’s business clients were located in the Republic of Ireland, the applicable law can be determined on that basis which entitles her to have the claims heard by the WRC. I am not satisfied on the basis of the submissions and evidence presented that the work of the complainant was habitually carried out in the Republic of Ireland.

In reaching my conclusions relating to the applicable law, I consider it appropriate to look at the circumstances as a whole as provided in Article 8 Paragraph 4 of Rome 1 and as outlined in Schlecker- v- Boedeker (C-64/12) [2013] ICR 1274 which at relevant part stated:

“[A]mong the significant factors suggestive of a connection with a particular country, account should be taken in particular of the country in which the employee pays taxes on the income from his activity and the country in which he is covered by social security scheme and pension, sickness, insurance and invalidity schemes. In addition, the national court must also take account of all of the circumstances of the case such as the parameters relating to salary determination and other working conditions.”

In relation to the specifics of the issue, the complainant was employed by a UK Company and lived in Northern Ireland. She worked from home, was paid in sterling and operated a sterling expense account. In addition, she paid her income tax and social security contributions to the UK Authorities.

Unfair Dismissals Act, 1977.

Section 2(3) of the Unfair Dismissals Act, provides as follows:

(3) (a) 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.

In all of the circumstances of this case and considering the realities of the working relationship between the parties, I find that the complainant’s contract of employment was more closely connected to the UK. 

Having considered the submissions of both parties to these complaints, I find that as the complainants contract was more closely connected to the UK, I do not have jurisdiction to hear the substantive complaints as submitted.