ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00009444
Parties:
| Complainant | Respondent |
Anonymised Parties | Crane Operator | Concrete Manufacturers |
Complaint:
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-00012328-001 | 06/07/2017 |
Date of Adjudication Hearing: 13/03/2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant was employed as a Mobile Crane Driver from 16th January 2016 to 14th June 2017. He was paid £818.00stg per week. He has claimed that he was unfairly dismissed and he has sought re-instatement, re-engagement or compensation. The Respondent has asserted that as per Sec 2(3) of the Unfair Dismissals Act the Adjudication Officer has no jurisdiction to hear this case because it states, “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”. |
Preliminary Issue
Jurisdiction
Complainant’s Position
The Complainant stated that he applied for a job in Ireland. He was based in Ireland at the time. The place of application was Ireland. The job involved work between Ireland and England. He spent many months in Ireland. He used the Wales address because it was convenient to the company and himself. In order to get the safety card CSCS he needed a UK national insurance number. His contract of employment named the Irish address. He denied he received travel and subsistence when in Ireland. He understands that he has a right to make his application in the Irish jurisdiction.
Respondent’s Position
The company had a requirement for a Driver in the UK. They advertised the job with a Liverpool location. The job advertisement clearly set the base as Liverpool, he would be based in the UK, he would be paid in sterling and he would make tax and social welfare contributions to the English authorities. When he was assigned to work in Ireland he was paid a travel and subsistence allowance. He was employed in the UK which is a jurisdiction outside the Republic of Ireland. The Adjudication Officer does not have jurisdiction to deal with this case because of Sec 2 (3) of the Unfair Dismissals Act.
Decision:
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.
I note the conflict of evidence in this case.
I find that the position was advertised as being based in Liverpool, with predominantly UK work.
I note that the Complainant stated that he opted for a UK base because it was convenient for him and the company. Whereas the Respondent stated that they had designated this post as a UK one.
I note that he was paid in sterling and all deductions were to UK authorities.
I find that there was no contractual provision providing for one jurisdiction over the other with regard to this type of issue.
On the balance of probability, I have decided that this was a UK based job, being paid in sterling and with UK deductions.
Therefore, I have decided that Sec 2(3) of the Unfair Dismissals Act applies: “This Act shall not apply in relation the dismissal of an employee who, under the relevant contract of employment, ordinarily, worked outside the state”.
Therefore, I have decided that I do not have jurisdiction to deal with this claim.
Dated: 25 May 2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Application of Act to worker who ordinarily works outside the state. |