Complainant

Respondent

Anonymised Parties

A Seafarer

A Shipping Company

Representatives

Represented by Aaron Shearer BL, instructed by Brian Berrills & Company Solicitors

Represented by Claire Bruton, instructed by Mason Hayes & Curran

Act

Complaint Reference No.

Date of Receipt

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

CA-00035456-001

26/03/2020

At the hearing of the matter on 11 January 2021, an application was made by the respondent’s legal representative requesting that the preliminary issue of jurisdiction be examined given the particular circumstances of the within case. This request was acceded to and a further hearing took place on 10 May 2021 and both sides made submissions on the preliminary matter of jurisdiction.

The complainant commenced with the company in February 2013. The complainant worked off shore and was engaged in the installation of off shore windfarm installation in the course of his employment. An incident arose on board the vessel the complainant was working on in August 2018 which resulted in injury to four crew members including the complainant. Following an investigation and disciplinary hearing concerning the complainant’s involvement in the incident, his employment was terminated on 1 October 2019 by reason of a finding of misconduct in respect of the incident which amounted to gross negligence. This finding was upheld on appeal. The complainant lodged a case of unfair dismissal on 26 March 2020.

Counsel for the complainant submits that the complainant’s work involved, inter alia, periods of time in Belfast, in German waters and in Brighton, England together with working on vessels off the Danish and Dutch seas. Counsel further states, as the detail at Appendix 3 of the respondent’s submissions makes clear, the complainant’s work locations were myriad. The following work locations are detailed in that Appendix :

·       North Sea -  Danish sector

·       Irish Sea -UK Sector

·       Irish Sea – UK Sector / Transit Holland

·       Vlissingen

·       North Sea – Dutch Sector

·       Esbjerg

·       North Sea – UK Sector

·       English Channel

Counsel for the complainant submits that this list of work locations show that the respondent’s assessment of which was the complainant’s place of work, which was the jurisdiction with which the complainant’s employment is most closely associated and/or which was the last place at which the complainant last carried out work is simplistic. Counsel submits that when one has regard to the complainant’s contract of employment, it designates that the complainant’s place of work: “will be on any vessel owned, managed, bareboat chartered or operated by X company, Singapore” {my emphasis}. Counsel further states that, as paragraph 7 of the respondent’s submissions highlight, the contract of employment contains a clause which seeks to confer jurisdiction for any dispute arising out of or in connection with the letter of offer on the courts of Singapore. Counsel states that it is noted that the respondent does not seek to argue that Singapore is the correct jurisdiction for this claim and Counsel contends it is correct to not so contend.

Counsel submits that there was an incident on 23 August 2018 involving the complainant. The incident occurred whilst the complainant was in the course of his employment with the respondent, at the port of Eemshaven. Counsel states that the complainant was injured in this incident and thereafter was certified unfit for work at sea. It is submitted that the complainant’s employment was terminated approximately thirteen months after the said incident. Between 2 September 2018 and the date of termination of his employment, the complainant was exclusively based in this jurisdiction. For a period of thirteen months, therefore, the complainant neither worked nor resided in either the Netherlands or Denmark or indeed in any of the other locations at which he had worked during the course of his employment.

Summary of Legal Arguments

Regulation 1215/2012 contains rules to facilitate access to justice on a predictable and certain basis in the context of various types of disputes. It is noted in the Preamble to Regulation 1215/2012, at paragraph (16) thereof, it is acknowledged that: “In addition to the defendant’s domicile, there should be alternative grounds of jurisdictions based on a close connection between the court and the action …”. Additionally and notably, Regulation 18 of the Preamble provides: “In relation to insurance, consumer and employment contracts, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules.”  Counsel for the complainant states by way of further general comment Regulation 1215/2012 is founded upon and gives effect to the maintenance of the touchstones of private international law which are;

·       The principle of freedom of choice

·       The principle of proximity

·       The principle of protection of a weaker party

Counsel for the complainant states that while the respondent has submitted that the complainant habitually worked in Denmark and the Netherlands and that the jurisdiction to hear and determine the within matter should be assessed on that basis; the facts do not support this submission. Counsel for the complainant maintains that as the document at Appendix 3 clearly shows, the complainant worked for approximately one and half years of the five and a half years of his employment in UK waters or at UK ports. Typically, the complainant tended to be based in no single location for spells longer than six months. Counsel contends that what the respondent submits to be the primary basis upon which to determine jurisdiction, namely that the place where the employee habitually carried out his work was either Denmark or the Netherlands, is not supported by the evidence adduced. Counsel states that jurisdiction can be determined by reference to the place from where the employee habitually carries out his work or in the courts of the place where he last did so. On either determinant of jurisdiction, it is submitted that Ireland and its courts have jurisdiction to determine and hear the claim.

It is submitted that in terms of the complainant’s employment, it is first and foremost highlighted that he was based exclusively in Ireland for a period of thirteen months prior to the termination of his employment. His salary was paid to an Irish bank account and always has been. Counsel submits that the issue of salary is one wholly germane to this question of jurisdiction, in that, the complainant was subject to Irish taxation of his income. It is submitted that other relevant matters are that the complainant attended for numerous training days in Ireland. Counsel states that the interview which formed the basis of the complainant’s disciplinary investigation was conducted by NH, General Manager, MM and MG took place at the City North Hotel, Co. Meath.

Counsel for the complainant states that notably the contract of employment exhibited by the respondent details that the complainant’s Country of Residence or “Homeport” is Dublin. It is submitted that notable from this are two things. One is that the contract of employment stipulates that any change of residence must be notified to the respondent in writing at least three months in advance. It is submitted that the respondent company placed central significance on the place of residence is evident from this requirement. Counsel states that secondly the notion of a Homeport is clearly analogous to the concept of Home Base for cabin crew in respect of whom Home Base is regarded as a key criterion for assessing where cabin crew habitually work.

It is submitted that Clause 5.2 of the Main Fleet Agreement details various matters which were required of the complainant when he was on home leave, specifically

-          Checking and monitoring e-mail for instructions and updates

-          Making contact with the company at least 14 days prior to expiry of leave to confirm arrangements for return to duty

-          Being available and ready to join a vessel 7 days prior to expiry of leave

It is detailed in the Main Fleet Agreement that the complainant would be subject to penalty if he failed to comply with these requirements. Counsel submits that it is clear therefore that even whilst home from sea, the complainant had obligations relating to the performance of his contract of employment. Counsel for the complainant states that in circumstances where the facts in the within case do not support either the Netherlands or Denmark as the place where the complainant habitually carried out his work, in circumstances where the only constant in location in the context of that employment was Ireland and in circumstances where Ireland was the last and only place associated with his employment in the thirteen months prior to dismissal, the basis for the WRC’s jurisdiction to hear and determine the within claim is axiomatic.

The position of the respondent is that the WRC and the Irish Courts and Tribunals have no jurisdiction to hear/or determine the within claim of unfair dismissal by reason of the Brussels Recast Regulation which deems Denmark/the Netherlands to be the appropriate jurisdiction to deal with any claims the complainant may have arising from his employment.

The respondent states that the complainant joined the company (which is registered in Hong Kong) with a Singapore branch, on 20 February 2013. The respondent states that at all times, the complainant was engaged as a sea farer.  The respondent submitted a copy of the respondent’s certification of incorporation to the WRC. It is submitted that the complainant was initially employed by the respondent as an auxiliary crane operator. He was issued with a new contract as assistant deck supervisor on 1 October 2014 and assumed the position of senior crane operator in August 2017 and was promoted to deck supervisor in April 2018. It is submitted that at all times the complainant worked off shore, mainly off the Danish seas, out of the port of Esbjerg, Denmark and was engaged in the installation of off shore windfarm installation in the course of his employment.

Counsel for the respondent states that the contract of employment of the complainant issued in April 2018 contained the following governing law and jurisdiction clause: “This letter of Offer is governed and constructed in accordance with the laws of Singapore. Any dispute arising out of or in connection with this Letter of Offer shall be determined by the courts of Singapore to the exclusion of any other court.” It is submitted that during the complainant’s employment, he worked on two vessels. The first of these was the Pacific Orca from 2013 to February 2016, a vessel registered in Cyprus and at that time owned by SPO (Cyprus) Ltd., a Cypriot registered company and which was bareboat chartered by SBO A/S (now renamed as C A/S), a Danish registered company. The respondent states that it had a contract to provide crew for the vessel and on that basis the complainant was assigned to that vessel in his capacity as auxiliary crane operator and more recently assistant deck supervisor. It is submitted that in February 2016, the complainant was placed on the PC, a sister vessel to the PO, and again this vessel was at that time owned by SPO (Cyprus) Ltd and bareboat chartered to SBO A/S, a Danish registered company. During his time on the PO vessel he was employed in the position of assistant deck supervisor, senior crane operator and deck supervisor (from April 2018).

It is submitted that the projects of which the complainant worked were typically 28 days on-board and 28 days of leave. All instructions for work on-board the vessel were provided by the Danish company to the on board crew, including the complainant. The respondent contends that the complainant was effectively seconded to a vessel operated by the Danish company. It is submitted that during the complainant’s employment, he worked mainly in the Danish seas out of the port of Esbjerg, Denmark and occasionally worked out of the Dutch ports of Vlissingen and Eernshaven (in 2018) in the Dutch seas. It is submitted that at no time he did work in, or out of any port in Ireland. The respondent states that an incident occurred on 23 August 2018 which resulted in injury to four crew members including the complainant. Following an investigation and disciplinary hearing concerning the complainant’s involvement in the incident, his employment was terminated on 1 October 2019 by reason of a finding of misconduct in respect of the incident which amounted to gross negligence. This finding was upheld on appeal.

The respondent submits that the claim form lodged by the complainant on 26 March 2020 names the respondent as the employer but with a Danish address. It is submitted that by e-mail dated 4 June 2020, the respondent informed the WRC that the address of the respondent was not in fact Denmark and was the address in Singapore. This was without prejudice to the jurisdictional argument it intended to make regarding the absence of jurisdiction of the WRC to hear/or determine the complainant’s claim under the Unfair Dismissals Act.

Legal Submissions

Brussels 1 Regulation (recast)

The respondent submits that the Brussels 1 Regulation (recast) contain rules to facilitate the access to justice, in particular regarding the jurisdiction of Courts and Tribunals in EU member states on a predictable and certain basis, in the context of various types of disputes. It is submitted that special provisions apply to the jurisdiction of Courts in the context of individual contracts of employment as a matter of law and disputes arising from the employment relationship. The respondent asserts that the Regulation makes it clear that a jurisdictional clause prescribing a particular jurisdiction is not definitive and this position is accepted by the respondent such that clause 10 of the complainant’s contract of employment prescribing Singapore as the appropriate jurisdiction to determine any employment disputes is not definite. The respondent submits that in general terms, the import of the Regulation rules apply where both parties to an employment contract are based inside the EU.

The respondent submits that the following Articles of the Regulation are relevant:

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 & 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

1.       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.

2.       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.

The respondent submits that these provide that an employer can only sue an employee in the courts of the member state in which an employee is domiciled. Under the Regulation, employees have a wider choice. It is submitted that as well as suing their employer in the member state where the employer is domiciled (Singapore or potentially Denmark/the Netherlands in this case) they can sue in the courts of the country where they habitually carry out their work, in this case Denmark/ Netherlands by reason of Article 21. The respondent submits that this is on the basis that the complainant regularly worked in the Danish seas during his employment with the respondent. It is submitted that the former are the appropriate member states for any proceedings challenging the complainant’s termination from employment to be brought.

The respondent submits that the Irish Courts have taken a largely similar approach to the English Courts regarding choice of law clauses. In Abama & Ors v Gama Construction Ireland Ltd. Dunne J reviewed the authorities and accepted that the test is that a court should give effect to an exclusive jurisdiction clause unless there are good reasons not to. It is submitted however that Dunne J appeared to accept that this general proposition at common law had to be reviewed in light of the Brussels 1 Regulation (the predecessor to the recast Regulation) and in fact the discretionary nature of the common law principle allowing jurisdictional clauses meant that effectively, the law on jurisdictional clauses is now governed by the provisions of the Regulation, where applicable. It is submitted that this was even on the basis that the parties in the case before her had entered into a choice of court agreement designating the courts of a non EU Member State (Turkey) as having exclusive jurisdiction to determine any employment disputes, albeit that the employees regularly worked in Ireland. The respondent maintains that this dicta, upheld by the Court of Appeal is authority that the Irish Courts/Tribunals will exercise their discretion to override a jurisdiction clause, even where it designates a non EU Member State (in this case Singapore) as having jurisdiction to determine any disputes, in circumstances where the proceedings fall within the scope of the Brussels 1 Regulation and more particularly Ireland is the appropriate Member State for the purposes of the Regulation.

The respondent submits that the EU Commission has stated that in interpreting the appropriate jurisdiction for an employment related dispute to be determined in line with the Regulation, the following applies:

“In disputes between the employee and the employer, the main connecting factor between the Brussels 1 Regulation (recast)… is the place where the employee habitually carries out his work.”

The respondent submits that in circumstances where the Regulation prescribe Denmark/the Netherlands as the Member State having jurisdiction to determine any employment related issues of the complainant, he did not carry out any work in Ireland and at all times was based in the Danish/Dutch seas, there is no basis for Ireland and the WRC to hear or determine his claim as there is no jurisdiction to do so. It is submitted that there is simply no link between the employment of the complainant and Ireland. The respondent asserted that this differs from the decision of A Healthcare Specialist v A Specialist Healthcare Service Ltd, wherein the Adjudication Officer was satisfied she had jurisdiction to hear the claim under the Unfair Dismissals Act 1977, as amended, as “the complainant exclusively worked in Ireland and therefore could fall under Article 21(1)(b)(i) [of the Regulation].”

The respondent submitted that in the decision of Goshawk Dedicated Ltd v Life Receivables Ireland Ltd [2008] IHEC 90, Clarke J suggested that the Brussels Regulation is mandatory and must be applied by a Court or Tribunal dealing with the issue of jurisdiction, where an EU Member State has appropriate jurisdiction. He stated: “there can be little doubt but that the traditional common law jurisdiction has, at a minimum, been substantially eroded by the provisions of … the Brussels Regulation.” The respondent further states that similarly, in ADJ-000000680, the WRC held: “Plainly, the Regulations take precedence over the Section of the 1977 Act relied upon by the respondent as they were enacted (long) after the Section of the 1977 Act relied upon by the respondent and as European Regulations are binding on all member states they take precedence over domestic law.” 

In conclusion, the respondent submits the following;

(a)    The Brussels Regulation applies to determining whether the WRC/Ireland has the jurisdiction to hear and determine the within claim

(b)    The Brussels Regulation is mandatory and must be applied by the WRC before assuming jurisdiction to hear and determine the claim of the complainant

(c)     Under the Brussels Regulation, Ireland is not an appropriate Member State in which to bring proceedings related to the complainant’s employment, rather this is Denmark or the Netherlands

(d)    The complainant did not work in Ireland and his employment had no connection with Ireland. The respondent does not have a branch or establishment within Ireland and for the purposes of Article 21(2) of the Brussels Regulation, the complainant worked habitually in Denmark or the Netherlands (where the incident occurred). The respondent is not domiciled in an EU Member State

(e)    The within proceedings should be dismissed.

Preliminary Finding: Whether WRC has Jurisdiction to hear/determine the claim

I have considered the European Commission’s ‘Practice Guide on the Jurisdiction and Applicable Law in International Disputes Between the Employee and the Employer’ for guidance on whether the WRC has jurisdiction to hear and determine the within complaint. The Brussels 1 Regulation (recast) (EU) No. 1215/2012 (replacing Brussels 1 Regulation 44/2001/EC and effective from 10th January 2015) contain special provisions to determine which courts have jurisdiction over disputes relating to individual contracts of employment and the applicable law, respectively. This Practice Guide sets out the rationale for such provisions 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 connecting factor 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.” It is therefore clear that the Regulations require separate consideration of whether the WRC has jurisdiction to hear the complaint and if so, the applicable law, as follows:

Whether the WRC has Jurisdiction to hear Complaints?

Brussels 1 Regulation (recast) (EU) No. 1215/2012 provides the rules for determining jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. Notably, Regulation 18 of the Preamble provides: “In relation to insurance, consumer and employment contracts, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules.” Section 5 provides for jurisdiction in respect of individual contracts of employment as follows:

“SECTION 5

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

1. 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.

1. 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.”

The complainant’s legal representative maintains that Article 21(1)(b)(i) of Regulation 1215/2012 confers jurisdiction to the complainant to bring a claim in Ireland based on the following;

·       the complainant’s homeport is Dublin

·       the complainant would be 28 days on board the vessel at sea and then 28 days on leave

·       the complainant’s last period of 12-18 months was based in Ireland when he was on sick leave

·       the complainant’s initial training took place in Ireland and his disciplinary meeting was held in the City North Hotel.

·       the complainant filed his tax returns in Ireland

The respondent’s legal representative submits that the complainant’s last place of work was in the Dutch seas. It was submitted that the complainant did not undertake any duties in Ireland; that his tools were on the vessels and most of his training took place on the vessels. The respondent’s legal representative reiterates that the complainant’s main or effective place of work was based on vessels mainly in Danish seas and more recently in the Dutch waters where the accident occurred (23 August 2018). It is submitted by the respondent that while on an exceptional and compassionate basis a representative of the respondent travelled to Ireland to hold the disciplinary meeting with the complainant; there is no connection to Ireland as regards the complainant’s habitual place of work. The respondent’s legal representative cites the ECJ case in Ryanair in this regard.     

Counsel for the complainant submits that a case could be brought in Singapore but the contract was performed in the European Union and there must be a cause of action in the EU. Counsel asserts that the complainant’s work takes place on board the vessel and that Regulation 21 (b) 1 & 2 confers jurisdiction to bring a case in Ireland given the non-binding nature of the recitals at 16 and 18. It is submitted that the matter can be viewed so as to benefit the weaker party –“the principle of protection of a weaker party”.

The respondent’s legal representative argues that close connection is not the test and that Article 21 is categoric, in that, it is where the precise duties of employment take place.

Having carefully examined all the evidence adduced, I find that the complainant does not have jurisdiction to bring a claim in Ireland.  Article 21 of the Brussels 1 Regulation (recast) states that

1.       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.

2.       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.

Under the Regulation, employees as well as suing their employer in a member state where the employer is domiciled (Singapore), they can sue in the courts of the country where they habitually carry out their work.  I note from the evidence provided that the complainant worked mainly in the Danish seas out of the port of Esbjerg, Denmark and occasionally worked out of the Dutch ports of Vlissingen and Eernshaven in the Dutch seas where the incident occurred on 23 August 2018.  

While Counsel for the complainant has argued that there is jurisdiction in Ireland on the basis that the complainant filed his taxes in Ireland and that his last thirteen months after the incident he was exclusively based in this jurisdiction together with the issue of initial training and the disciplinary meeting being held here; I accept the point made by the respondent’s legal representative that a close connection is not the test but that Article 21 is specific and relates to where the precise duties of the employment take place. The complainant did not work in Ireland. The respondent does not have a branch or establishment within Ireland and for the purposes of Article 21(2) of the Brussels Regulation, I am satisfied that the complainant worked habitually in Denmark or the Netherlands (where the incident occurred).

Having carefully examined all of the arguments put forward by both sides, I am satisfied based on the evidence provided that pursuant to the Brussels Regulation, Ireland is not the appropriate Member State in which to bring proceedings related to the complainant’s employment. In the circumstances, based on the foregoing, I find that there is no jurisdiction to hear the substantive claim.

For the foregoing reasons above, I find that I have no jurisdiction to hear/determine the within claim of unfair dismissal.

Preliminary decision, jurisdiction, Brussels 1 Regulation (recast)