ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00025673

Parties:

Complaint:

Date of Adjudication Hearing:  22/02/2021

Workplace Relations Commission Adjudication Officer:  Eugene Hanly

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977following 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:

Preliminary Point Jurisdiction

Respondent’s Position

The Respondent is a branch company of an Indian registered company, which forms part of the Group. It is a global group of companies that has operations in more than 50 countries and provides business consulting, information technology and outsourcing services for clients.

The Complainant was employed as a Support Analyst by the company in India from 9 February 2009 until his employment terminated on 6 June 2019. On 13 November 2018, the Complainant commenced a temporary deputation/assignment with the Respondent. He relocated to Ireland and was assigned to work on a project for a client of the Respondent. Under the terms of the Complainant’s ICT Permit, the Respondent was the connected person and the ICT conditions outlined that he was also permitted to work for the Respondent and the client. As set out in the Letter of Assignment, the assignment was expected to last for 9 months (until approx. 19 July 2019). The Complainant’s assignment with the Respondent ended on 24 May 2019 and his employment with the Indian company was terminated on 6 June 2019.

The Complainant has brought his claim of unfair dismissal against the Respondent, a branch of a company incorporated in India. Under the Unfair Dismissals Act 1977 – 2015, the definition of employer is as follows: “employer” in relation to an employee means the person by whom the employee is (or, in a case where the employment has ceased, was) employed under a contract of employment.”

The Complainant at all times remained an employee of the Indian company. The Respondent submits that the Complainant’s Intra Company Employment Permit and Letter of Assignment demonstrate that his employment remained with the Indian company throughout the duration of his temporary assignment to work in Ireland and this supports the view that his employment is governed by Indian law. This position is further supported by the fact that, for the duration of the assignment, the Complainant reported to his on-site manager in Ireland, who was similarly assigned to the Respondent but employed by the Indian company. This onsite manager had responsibility for the Complainant’s day to day delivery of the service to the client.

The Complainant also reported to an off-shore team in India in respect of other aspects of his employment. For example, the off-shore team had responsibility for addressing any performance issues with the Complainant during his assignment in Ireland. Any support provided by the Respondent’s HR director does not indicate a transfer of employment to the Respondent but was intended to facilitate the purpose of the ICT permit under which the Complainant carried out duties on assignment for the Respondent but remained an employee of the Indian company and his employment was governed by Indian law. The position regarding the nature of the Complainant’s assignment is set out very clearly in clause 1 of the Letter of Assignment which states:

“your [Assignment] will be for a period of approximately 9 month(s), tentatively commencing

from 13-Nov-18”. The exact duration, however, will depend on the specific requirements of the

project.

This [Assignment] is temporary in nature and you shall return to your home country post completion of your [Assignment]. The normal place of duty continues to be in India. Please note that your on-site tenure on this [Assignment] letter cannot exceed a total of 18 months.” Section 3A(2)(d) of the Employment Permit Act 2006 as amended, outlines that the express purpose of the ICT permit is to “provide for a foreign national who is employed by a foreign employer outside the State to carry out duties for, or participate in a training programme provided by a connected person [emphasis added].” Indeed, this is further outlined in the Department of Business Enterprise and Innovation’s Employment Permits FAQ document which states that under the ICT permit “the foreign national must remain employed on an employment contract outside the State by the foreign employer”1. The legal position of ICT permit holders is clear – they remain employed by the foreign employer for the duration of the ICT permit. The Respondent respectfully submits that the complaint against it should be dismissed as the Complainant’s employment was with Indian company and is governed by Indian law.

Without prejudice to the foregoing, if the Adjudication Officer determines that the Respondent is the Complainant’s employer for the purposes of this complaint and holds that his employment is governed by Irish law, it is submitted that the Complainant does not have the requisite one year’s continuous service with the Respondent to bring his claim under the UD Act as his assignment with the Respondent was only 9 months long.

Section 2(1)(a) of the UD Act, provides that the UD Act does not apply to, inter alia:

“an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him.”

As set out above, the Complainant’s assignment with the Respondent commenced on 13th November 2018 and his assignment with the Respondent was terminated on 24 May 2019.

Ultimately his employment with the Indian company terminated on 6 June 2019. The Complainant spent approximately 9 months on assignment with the Respondent and as such, he did not have the 12 months’ continuous service required to bring a claim of unfair dismissal against the Respondent.

The Complainant’s employment throughout his temporary assignment in Ireland remained with The Indian company and is governed by Indian law, and it is submitted that the WRC does not have jurisdiction to hear the claim on that basis.

It was a condition of the Complainant’s ICT permit that his employment remained with the Indian company for the duration of his assignment with the Respondent in Ireland. Consequently, it is submitted that the Complainant was aware that the WRC did not have jurisdiction to hear his claim at the time of completing the WRC complaint form.

Further, it is submitted that the Complainant is estopped from denying that the Indian courts have exclusive jurisdiction to hear this complaint in circumstances where the Complainant has expressed an intention to initiate proceedings against the Indian company in the Indian courts. In this respect the Complainant has given a legal notice to the Indian company threatening to issue legal proceedings in the Indian courts – which is the appropriate authority and jurisdiction for his claim to be dealt with.

Complainant’s Position

He stated that he was an employee of the Indian company. He undertook an assignment in Ireland for approximately six months. He encountered difficulties there. He made protected disclosures to his manager verbally and informally. His employment was terminated in retaliation for making those protected disclosures in Ireland. He confirmed that he is preparing proceedings for the Indian Courts as well.

He stated that he does not have legal representation for this hearing. He had given instructions to a firm of solicitors in Ireland but that didn’t work out. He sought an opportunity to seek out legal assistance and revert to this hearing.

He believes that he has jurisdiction to bring a case of unfair dismissal in Ireland.

Decision on Preliminary Point

I note that The Complainant requested more time to get legal assistance.

I note that he had given instructions to an Irish firm of solicitors, but they informed the WRC that they could not get in communication with the Complainant and so were withdrawing from representing him.

I gave the Complainant until the close of business Friday 26th February to provide an update on legal representation.

I reminded the Complainant he had submitted a claim to the WRC on 3rd December 2019 and so he had ample time to secure legal representation and that I was not prepared to allow much more time to do given that he had 14 months to do so.

I note that the Complainant did not communicate with the WRC by close of business on Friday 26th February 2021.

I find that the Unfair Dismissals Act definition of an employer is as follows: “employer” in relation to an employee means the person by whom the employee is (or, in a case where the employment has ceased, was) employed under a contract of employment.”.

I find that the Complainant was at all times an employee of the Indian company.

I find that there was no transfer of undertakings or otherwise such a transfer as to confirm employment by an Irish company.

I find that there was no evidence presented to show that a protected disclosure was made. I note that the Respondent stated that they had no such information of the Complainant making such a disclosure.

I find that even if I were to find any evidence to support the Complainant’s contention of being employed by an Irish company, I find that he does not have the requisite 12-months service and has not cited any of the grounds contained in the Unfair Dismissals Act which allows such a claim to be made by a complainant with less than 12-months service.

I also note that the Complainant has confirmed that it is his intention to take similar proceeding against his Indian employer in the Indian Courts.

I find that this confirms to me that the Complainant believes that his former employment was governed by Indian legislation, not Irish.

I find that the complainant was at all times an employee of the Indian company.

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.

For the above stated reasons, I have decided that I do not have jurisdiction to hear this case.

I have decided that this claim is not well founded.

Dated:   March 25th 2021

Workplace Relations Commission Adjudication Officer:  Eugene Hanly

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