1.Appeal of Adjudication Officer Decision No(s). ADJ-00025673 CA-00032661-001.
The Complainant lodged a complaint with the Workplace Relations Commission, ‘WRC’, under the Unfair Dismissals Act 1977-2015, ‘the Act’.
The Respondent argues that the Complainant’s employment was not governed by Irish law as, at all times, it is argued that he remained an employee of Infosys India.
The Adjudication Officer, ‘AO’, decided that he did not have jurisdiction to hear the case.
The Complainant appealed to this Court.
The Court decided that prior to any possible consideration of issues regarding the dismissal, it was necessary to consider whether the Court had jurisdiction to hear the case and the parties were invited to make submissions on this matter.
Summary of arguments by the Respondent on the preliminary matter.
The Complainant’s dismissal took place while he was in Ireland but that does not mean that the dismissal was covered by Irish law. The Complainant, at all times, remained an employee of Infosys India and was assigned to work in Ireland temporarily under an Intra Company Permit, ‘ICT Permit’, an express condition of which was that he would remain employed by Infosys India. The Complainant’s employment was governed by Indian law
s. 2(3) of the Act provides that there is no jurisdiction for the Court to hear a complaint under the Act unlessinter aliathe Complainant was ordinarily resident in Ireland during the term of the contract. The Complainant was never ordinarily resident in ~Ireland. His assignment was temporary and he was required to resume work in India upon termination of the temporary assignment.
Article 8 of the Regulation on the law applicable to contractual obligations , ‘Rome 1’, EC Regulation no. 593/2008 provides that an employee’s habitual place of work ‘shall not be deemed to have changed if he is temporarily employed in another country’ and noted further that ‘work carried out in another country should be regarded as temporary if the employee is expected to resume working in the country of origin after carrying out his tasks abroad’.
The main connecting factor in the Brussels 1 Regulations (recast) and the Rome 1 Regulation is noted in the European Commission’s guide on jurisdiction to be where the employee habitually carries out his/her work.
The Complainant’s habitual place of work did not change from India to Ireland.
Article 8(4) of Rome1 notes that ‘where it appears from the circumstances as a whole that the contract is more closely connected with a country….the law of that other country shall apply’. The ICT permit, itself, demonstrates that the Complainant’s employment was more closely connected with India.
While in Ireland, the Complainant reported to an on-site manager who was similarly employed by Infosys India and temporarily assigned to Ireland with the Respondent. Further, he reported to an offshore management and HR team in Infosys India in respect of any issues concerning his employment.
The Complainant has submitted that if the Court determines that it does not have jurisdiction to determine the appeal, his dismissal is automatically illegal. That is not correct.
The Indian courts are the proper forum for the Complainant to challenge any perceived illegality or unfairness in relation to the termination of his employment.
The Complainant himself recognises this and submitted legal notice to Infosys India outlining his intention to issue legal proceedings in the Indian courts.
The annexure to the deputation letter quoted by the Complainant regarding choice of law related solely to a Non-Compete clause as is apparent from the heading and, in any event, was superseded by a subsequent iteration of the letter.
Summary of Complainant arguments on the preliminary issue.
The unfair termination was executed in Ireland and involved Irish citizens.
The alleged incident that led to the dismissal happened in Ireland.
The unfair events of dismissal, retaliation and harassment occurred in Ireland.
An event that occurred in Ireland if it cannot be challenged in Ireland is automatically rendered illegal and questions the legitimacy of issuing a termination in Ireland and leaving the Complainant stranded on a foreign land.
Hypothetically, if the stranded individual were to become an illegal immigrant in Ireland or to become involved in unsocial, malicious or illegal activities would the Irish Justice system ignore that and claim to have no jurisdiction?
An annexure to the deputation letter provided that, ‘All disputes with respect to this agreement shall be subject to the exclusive jurisdictions of the courts of Dublin, Ireland.’
The Complainant is not pursuing proceedings against Infosys India in the Indian courts.
The Complainant was subject to Irish taxation while working in Ireland.
The applicable law.
Unfair Dismissals Act
(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.
EC Regulation No.593/2008
Article 3 — Freedom of choice
1.A contract shall be governed by the law chosen by the parties. The choice shall be made expressly or clearly demonstrated by the terms of the contract or the circumstances of the case. By their choice the parties can select the law applicable to the whole or to part only of the contract.
2.The parties may at any time agree to subject the contract to a law other than that which previously governed it, whether as a result of an earlier choice made under this Article or of other provisions of this Regulation. Any change in the law to be applied that is made after the conclusion of the contract shall not prejudice its formal validity under Article11or adversely affect the rights of third parties.
3.Where all other elements relevant to the situation at the time of the choice are located in a country other than the country whose law has been chosen, the choice of the parties shall not prejudice the application of provisions of the law of that other country which cannot be derogated from by agreement.
4.Where all other elements relevant to the situation at the time of the choice are located in one or moreMember States, the parties' choice of applicable law other than that of aMember Stateshall not prejudice the application of provisions of Community law, where appropriate as implemented in theMember Stateof the forum, which cannot be derogated from by agreement.
5.The existence and validity of the consent of the parties as to the choice of the applicable law shall be determined in accordance with the provisions of Articles10,11and13.
Article 8 — Individual employment contracts
1.An individual employment contract shall be governed by the law chosen by the parties in accordance with Article3. 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 meaning and intention of s.3(a) (i) of the Act, set out above is clear. If an employee is living and working in Ireland for the duration of a contract of employment, they are covered by the protections of the Act.
This principle was upheld by the Employment Appeals Tribunal in the case ofAmstrad plc v Walker, UD345/91,subject to an undertaking by the Complainant to withdraw a claim made in another jurisdiction, (ultimately the High Court vacated the order due to the case being pursued in another jurisdiction).
The Respondent argues that the contract of employment at all times was between the Complainant and Infosys India and that the Complainant was ordinarily resident in India for the duration of the contract.
However, the ‘deputation letter’ that governed the arrangements to apply to the Complainant while in Ireland is, undeniably itself, a set of contractual arrangements agreed between the parties for the duration of the Complainant’s time working in Ireland.
It is a signed agreement between the parties and it intended clearly that, while it applied, the Complainant would be resident in, and would work in, Ireland.
While it is a fact that the Complainant remained in the employment of an entity outside of the State with no right to remain within the State once the temporary arrangements set out in the deputation letter came to an end and , indeed, a legal requirement was specified in the ICT permit that he would return to India at the end of that time, it is, nonetheless, an indisputable fact that he lived and worked in Ireland while covered by the terms of that letter and that, while doing so, he was dismissed.
As noted inMcIlwraith v Seitz Filtration (GB) Ltd.and inZimmerman v Der Deutsche Schulverein UD 373/1998,even if a contract is stated to be subject to the laws of another jurisdiction, an employee who meets the requirements of the Act is entitled to bring proceedings under the Act.
The Respondent is correct in arguing that the fact that the Complainant paid tax and PRSI in Ireland does not automatically confer jurisdiction on this Court, seePilawski v Fingal Bay Contractors Ltd., UD 2209/2011.
The Respondent lays heavy emphasis on the terms of Article 8 of EC Regulation No 593/2008, set out above. In particular, there is an emphasis on the sentence-
The country where the work is habitually carried out shall not be deemed to have changed if he is temporarily employed in another country.
However, this sentence has to be read as part of the entire regulation. Article 3 makes clear that rights which cannot be derogated from by agreement continue to apply even if the parties agree that the laws of a different country are to be applicable.
Put in simple terms, the Act applies in this country even if parties agree that the laws of another country are applicable. The following section of that article goes on to say;
‘Where all other elements relevant to the situation at the time of the choice are located in one or moreMember States, the parties' choice of applicable law other than that of aMember Stateshall not prejudice the application of provisions of Community law, where appropriate as implemented in theMember Stateof the forum, which cannot be derogated from by agreement.’
Again, put simply, even where parties choose to agree that the laws of a state that is not a member state of the EU should apply, the protective provisions of community law are applicable. Article 30 of the EU Charter of Fundamental Rights states unambiguously that-
‘Every worker has the right to protection against unjustified dismissal, in accordance with Union law and national laws and practices ’Equally, it is clear to the Court that Article 8, on which the Respondent so heavily relies, is intended to deal with the regulation of issues of jurisdiction as between member states within the European Union. India is not a member of the European Union.
The argument that this Article could be intended to deprive an employee of the opportunity to vindicate rights that are protected throughout the Union, and set out with such clarity in the EU Charter of Fundamental Rights, is contradicted by the very clear provisions of Article 3 that state firmly that such rights continue to apply, even if agreed otherwise.
In short, therefore, while working under the contractual terms set out in the deputation letter, the Complainant was living and working in Ireland. As per s. 3(a)(i) of the Act, which, itself, is consistent with EC Regulation No. 593/2008, he is covered by the provisions of the Act and the Court has jurisdiction to hear his appeal of the Adjudication Officer’s decision.
The Court will arrange an early sitting to hear the substantive matters under appeal.
The Decision of the Adjudication Officer regarding jurisdiction is overturned.