Complainant

Respondent

Anonymised Parties

A Lorry Driver

A Transport 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-00026859-001

06/03/2019

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

CA-00026859-002

06/03/2019

The complainant was employed by the respondent from on or about 9th January 2012 until 11th September 2018. The complaint was submitted to the WRC on 6th March 2019 and relates to an alleged Unfair Dismissal.

The respondent contends that the WRC does not have jurisdiction to hear the complaint by virtue of the provisions of Section 2(3) of the Unfair Dismissals Act, 1977. The respondent outlined that the complainant was resident in Northern Ireland, collected the Lorry each morning at his base in Northern Ireland and returned it to the base each evening. The complainant was paid in Sterling. The respondent further stated that the vast majority of the complainant’s daily Truck Runs over the period of his employment were carried out in the North.

The respondent stated that there was no written contract of employment between the parties and in the absence of any contractual agreement on the issue, the rules relating to governing law are set out in Rome 1 Regulation (EC) No. 593/2008.

The respondent cited the cases of Mulox IBC Limited v Geels C-125/92 [1993] and Nogueira and Others v Crewlink Ltd C168/16; Moreno Osacar v Ryanair DAC, formerly Ryanair Ltd C169/16 in support of its position that the complainant discharged his obligations to the respondent in Northern Ireland and taking account the specific circumstances of his employment habitually carried out his work in Northern Ireland. The respondent stated that as the complainant’s employment was more closely linked to Northern Ireland, the WRC does not have jurisdiction to adjudicate on the substantive complaint of Unfair Dismissal.

The complainant contends that the onus is on the respondent to prove that the provisions of the legislation do not apply to the complainant, which it has failed to do. The complainant stated that the complainant was employed by a Company incorporated under Irish Law and was paid in accordance with Irish Law. The complainant stated that a Haulage Business operating in a border area would inevitably have employees engaged outside of the State on occasion but that it’s employees should not be deprived of the protection of workers employed in the State by Irish Companies.

The complainant cited the cases of A Complainant v A Company DEC-E2002-036, A Meat Factory Operative v A Meat Processor ADJ000-16246 in support of its position and briefly referred to the cases of Petrus Wilhelmus Rutten and Cross Medical Ltd C-383/95, Bukley v Lee Overlay Partners Ltd (2006) 9JIEC 2401 and Ferrami v Sicim Ireland Ltd (2016) 2JIEC 2504.

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 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.”

Rome 1 Regulation

Article 8 of Rome 1 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.”

The Applicable Law

Section 2(3) of the Unfair Dismissals Act, 1977 states as follows:

(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.

(b) In this subsection “term of the contract” means the whole of the period from the time of the commencement of work under the contract to the time of the relevant dismissal.

Consideration

It is common case that there is no written contract of employment in place. The complainant has sought to refer the matter to the WRC for adjudication and the issue of jurisdiction has been raised as a preliminary issue by the respondent’s Solicitors.

In the absence of agreement on this issue, and in line with the provisions of Paragraph 2 of Article 8 of Rome 1, I have considered the matter as follows:

The complainant resides in Northern Ireland and his employment is based there. He begins his working day at his base in Northern Ireland and returns his Lorry to the base at the end of each day. The complainant is paid in Sterling and currently receives his Pension entitlements from Northern Ireland. In establishing where the complainant habitually carried out his work, the respondent helpfully submitted an analysis of the Truck Runs carried out by the complainant from 2013 until his employment ended in September 2018.

In its response to the respondent’s analysis of the Truck Runs, the complainant’s representative, in correspondence submitted to the WRC on or about the 11th March 2020, submitted figures that showed an average of 40% of the Truck Runs in question were either exclusively in the Republic of Ireland or were a mix of runs between Northern Ireland and the Republic of Ireland. On that basis I find it likely that 60% of the runs were exclusively in Northern Ireland or a mix between Northern Ireland and the Republic of Ireland.  

Having considered the entirety of the submissions and additional documentation, I am satisfied that the complainant discharged his contractual obligations (albeit implied) to the respondent, for the most part, in Northern Ireland. Accordingly, I conclude that the complainant’s employment is more closely linked to Northern Ireland and as the complainant ordinarily worked outside of the State and also resided outside of the State, I find that I do not have jurisdiction on the matter.

Having considered the submissions of both parties and all of the additional information submitted, I find that I do not have jurisdiction to hear the substantive complaint of Unfair Dismissal.