Complainant

Respondent

Parties

Krzysztof Knapik

ASL Airlines (Ireland) Limited

Representatives

  Self-represented

Ibec

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-00051265-001

22/06/2022

On 22 June 2022, the complainant referred a claim of unfair dismissal against the respondent to the Workplace Relations Commission regarding the termination of his employment on 24 April 2022.

A supplementary submission received on behalf of the respondent raised an issue concerning the applicable law of the employment contract by reference to EC Regulation 593/2008 (Rome 1).

Based on the submissions of the parties and documentation before me, I informed the parties that I would address the preliminary issue as to my jurisdiction to hear the claim.  I explained that if I considered I had jurisdiction to hear the case, a further hearing would be arranged to hear the substantive unfair dismissal claim; an alternative finding would result in the issue of a decision.

Summary of sworn evidence

From 2020, the complainant worked from a base in Paris, not Poland.  When working for the respondent from 2018 to 2022, the complainant was paid by an Irish based 3rd party company, and he paid taxes in Ireland.  This was his only source of income at the time. His pilot documents provided that Irish law applied and the planes he flew were registered in Ireland.  His last contract of employment with the respondent was a fictitious contract as the entity does not exist in the Polish tax system. The complainant submitted that he was employed through this entity to avoid the law.   

The complainant was not resident at the Polish address detailed in his contract of employment.  It was a correspondence address that was in the contract for tax purposes.   

Under cross-examination, the complainant said he had two bases in France and a private residence in Marseille, which was recognised by the French authorities as his place of residence. 

The complainant spent 80% of his working time working from Paris and the remainder on flights in and out of Stuttgart.  At the complainant’s base at Paris Charles de Gaulle, he had a 2-room apartment with a kitchen.  All of the complainant’s accommodation was provided by the respondent, including in Marseille.

The complainant never had flights to Dublin and sometimes had flights to Shannon.  All work-related training was in Dublin, and, from March 2020, training moved online.  The complainant also had safety related training in the UK and simulator training in France.  The complainant’s European pilot licence was issued by the Irish aviation authority. 

Under cross-examination, the complainant said he lived in France and sometimes in Poland.  His official address was in France.   The Polish address used by the complainant on his CV and detailed in his contract of employment is a correspondence address.  The complainant did not reside at that address when he was employed by the respondent.   When he was working with the respondent, he resided in Warsaw and Marseille.   He never lived in Ireland, he worked in Ireland.  When asked about when he worked in Ireland, the complainant said he worked in Ireland throughout his period of employment; the aircraft he flew were registered in Ireland and had Irish numbers. The complainant said that he resided in Ireland during training with the respondent and that he stayed in hotels provided for by the respondent.  It was put to the complainant that he was only physically in Ireland on one occasion when he travelled from Shannon to Dublin to get a flight home.  The complainant could not specifically recall being in Ireland from January 2021.  The complainant was asked about his accommodation at Charles de Gaulle airport which the complainant agreed was similar to an aparthotel.  The complainant did not attend training in Ireland from December 2020 to the cessation of his employment except for one training session which was online.  Any meetings with the respondent’s personnel were online or in Paris.  The complainant agreed that he trained in Dublin in 2018 when he was employed by an employment agency, prior to being employed by the respondent.

In response to my question about different trainings the complainant said he had in Ireland, the complainant advised it was in 2018 and that the last training from Dublin had been online.

The complainant confirmed starting and ending his rotations in Katowice, Poland.

The complainant submitted that the Katowice home base was set to avoid Irish law.  He further submitted that the most important evidence was that he paid his taxes in Ireland, that no company paid social security for him in Poland and that the complainant paid the social insurance contributions himself.  The complainant submitted that the respondent’s Polish branch is not recognised in Poland and the complainant’s contract of employment has no effect in Poland; this is why the complainant’s position is that the Workplace Relations Commission has jurisdiction in respect of the case.   The complainant requested the focus be on where his remuneration came from.

Preliminary Issue

The complainant was employed by the respondent as a pilot based in Poland from 1 January 2021 until his dismissal in April 2022.  He had, prior to January 2021, worked with the respondent as an agency worker.  The complainant’s contract of employment with the respondent detailed that the work shall be performed at Katowice, Poland.  The contract is silent as to applicable law and jurisdiction.

The respondent referred to Regulation (EC) No 593/2008 on the law applicable to contractual obligations (“Rome 1”) and submitted that paragraphs 8 and 19 of Rome 1 applied in this case.  As the complainant habitually carried out his work in performance of his contract with the respondent in Poland and resided in Poland during his employment with the respondent, the Workplace Relations Commission does not have jurisdiction to investigate the claim.  It was further submitted that this issue should be addressed as a stand-alone, preliminary issue.

Summary of sworn evidence of Linda Little

The respondent provides air transport services and has customers all over the world.  The registered address of the respondent company is in Ireland.  The witness is HR director with the respondent and works in Dublin. 

In the interests of operational efficiency, the respondent has pilots, engineers and other personnel based locally in Europe.  In respect of locally based employees, the respondent uses a 3rd party company to provide recruitment and payroll services.  The complainant had initially been employed by the 3rd party company and worked for the respondent as an agency worker.  From January 2021, the respondent directly employed the complainant however the 3rd party continued to provide the associated payroll and administrative services to the respondent in respect of the complainant. 

The complainant’s home base was Katowice in Poland.  Katowice was the place from where the complainant started and ended a duty period or rotation.  The respondent was not responsible for the complainant’s accommodation at the complainant’s home base.  As Katowice was the complainant’s home base, local Polish social security arrangements applied to the complainant.  

The logbook submitted is the legal record of the complainant’s flight time, which is maintained by the complainant to ensure compliance with flight time limitations.

The duty records submitted show the duty periods when the complainant is required by the respondent to be available for duties.  A duty period commences 1 hour before a crew member departs their home base and ends 15 minutes after returning to the home base.  The duty records all show the complainant returning to his home base.

Under cross-examination, the witness said the respondent did not directly pay for the complainant’s social security in Poland as this was done through its Polish branch.  The witness advised there was no tax number or address for its Polish branch, rather it is the Dublin address that is used for the branch.  The respondent used the 3rd party company to make local payments in respect of employer social security contributions.   It was put to the witness that the Polish social security system shows the complainant paying the contributions and that no payments were made by a company.   When asked why the complainant could not continue in the employment of the 3rd party company, the witness explained the requirements of Polish legislation on agency workers. 

Summary of sworn evidence of Captain Alice Lipson

Cptn Lipson described the accommodation the complainant stayed in Paris; it was not an apartment but an aparthotel.

The witness explained a rotation period by reference to the duty records which showed the complainant beginning a series of duty periods from his home base and ending the rotation on his return to the home base. 

The only time the complainant was in Ireland was when he was called out on standby on 12 November 2021 and flew to Shannon.  At no other point during his employment with the respondent was the complainant in Ireland.   All relevant training such as health and safety and crew resource management was done online.   The complainant’s line checks were undertaken on flight routes and she referred to a line check of 16 December 2021 which occurred on a flight from Paris Charles de Gaulle airport to Frankfurt.

Addressing the complainant’s point that he flew Irish registered planes, the witness outlined how 60% of aircraft flying in Europe are Irish registered, which may be attributable to Irish government tax incentives.   The witness said it is purely coincidental that the complainant flew Irish registered planes.   It is also not a requirement of the respondent for crew members to have an Irish licence.

Social security was paid for the complainant in Poland.  The respondent used a 3rd party company to provide payroll services in respect of employees based at home bases outside of Ireland.   The statutory provisions and employment laws applicable to the complainant were those of Poland.

The questions asked of this witness under cross-examination related to the substantive claim of unfair dismissal.

I have reviewed all the documentation submitted and carefully considered the submissions of the parties on the preliminary issue.

The respondent is a cargo airline with its registered office in Dublin.   The respondent employed the complainant as a pilot from 1 January 2021.  The complainant had worked for the respondent prior to January 2021 when he was employed by a 3rd party and assigned to the respondent.  The contract between the complainant and respondent in respect of the complainant’s employment from 1 January 2021 was concluded between the parties in Dublin on 4 December 2020. The employment contract detailed that the work would be performed at Katowice, Poland, and was silent on applicable law and jurisdiction.  On 24 January 2022, the respondent gave the complainant 3 months’ notice of termination of employment on grounds of performance issues.

The respondent raised a preliminary issue concerning the applicable law and my jurisdiction to hear the case.  It was submitted on behalf of the respondent that the complainant was not domiciled in Ireland and did not carry out his work in or from Ireland. It was submitted by the complainant that Irish law applies by reason of the respondent’s aircraft being registered in Ireland, he was paid by an Irish registered company, his income was subject to Irish tax, and he was not employed by a recognised Polish branch or company. 

Regulation EU No. 1215/2012 (“Brussels 1a”) and Regulation (EC) No. 593/2008 (“Rome 1”) contain special provisions to determine which Member State courts have jurisdiction over disputes relating to individual contracts of employment and the applicable law of the employment contract, respectively.  The European Commission’s Practice Guide “Jurisdiction and applicable law in international disputes between the employee and the employer”, to which I referred the parties for guidance, refers to the main connecting factor linking a dispute with a particular court and a particular applicable law as the “place where or from where the employee habitually carries out his work”. 

There was reference at the hearings and in written submissions and documentation to other companies, entities and branches.  I wish to expressly state and clarify that the respondent to this claim is ASL Airlines (Ireland) Ltd.  This was the entity detailed by the complainant in his complaint form.  I am satisfied that the complainant was employed by the respondent pursuant to a contact of employment, concluded 4 December 2020.  The respondent did not dispute that it was the complainant’s employer or that it terminated the complainant’s employment.   

Brussels 1a on jurisdiction

Pursuant to Article 21 of Brussels 1a, an employee may sue their employer in the Member State in which the employer is domiciled or in another Member State where or from where the employee habitually or the place where the business which engaged the employee is or was situated.  I am satisfied that there is no issue as to my jurisdiction under Brussels 1a in circumstances where the respondent is domiciled in Ireland.

Rome 1 on the law applicable

In the first instance I must address the nature of my role and jurisdiction.  The Workplace Relations Commission was established by the Workplace Relations Act 2015 (the “2015 Act”).  The 2015 Act provides for the appointment of adjudication officers for the purposes of the Act and is the fundamental source of an adjudication officer’s jurisdiction.  Section 41 of the 2015 Act specifies the complaints and disputes that may be referred by the Director General for adjudication by an adjudication officer.  The Workplace Relations Commission and adjudication officers have also been conferred with a specific role and adjudication function under certain other pieces of legislation, including the Unfair Dismissals Act 1977 and the Employment Equality Act 1998.  The function of an adjudication officer is prescribed by section 41(5) of the 2015 Act and in certain cases by the relevant legislation under which the claim has been referred.  Therefore, the Irish legislature has conferred jurisdiction on adjudication officers to adjudicate and make a decision in relation to a complaint, dispute or claim referred to it under certain specific, identifiable pieces of Irish legislation, and in accordance with the relevant redress provision of the specified enactment.  An adjudication officer does not have inherent or general jurisdiction to deal with and decide any type of dispute.  In circumstances where an adjudication officer’s functions and powers are so limited, it follows that I must be satisfied that Irish law governed the complainant’s employment with the respondent. 

Rome I establishes rules for determining the law applicable to individual employment contracts.  One of the key principles of Rome 1 is the freedom of contracting parties to choose the applicable law.  Where there has been no choice of law, it is clear from Recital 19 of Rome 1 that the applicable law should be determined in accordance with the rule specified for the particular type of contract.   The particular type of contract in this case is an individual employment contract therefore the applicable law should be determined by reference to the hierarchical structure out in Article 8.

The full text of Article 8 is 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 is 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.”

As the parties did not choose the law to govern the contract within the meaning of Article 8(1), I must consider where or from where the complainant habitually worked in performance of his contract with the respondent. 

It is clear from the judgments of the Court of Justice in Koelsch v Luxembourg (C-29/10) and Mulox IBC (C-125/92) that the meaning and scope of the Rome 1 rules must be established in accordance with consistent and independent criteria.

The nature of the complainant’s role as a pilot involved him carrying out his duties in employment in a number of Member States. There was much focus at the hearings on the complainant’s home base being situate in Katowice, Poland in the context of this being the place from which he habitually carried out his work.  The home base concept is one of a set of factors to be taken into account in determining the place from which an employee habitually carries out his work.  I have considered the judgment of the Court of Justice in Nogueira & ors v Crewlink Ireland Ltd (C-168/16) and note that in determining the place from which an employee habitually carries out his work, and to prevent exploitation of this concept, account must be taken of all the factors which characterise the complainant’s work, albeit that the home base concept is a significant factor. Whilst the judgment of the Court in Nogueira was in respect of a preliminary referral on the Brussels I Regulation, it is directly relevant in circumstances where it relates to the concept common to the two Regulations, namely the place in which or from which the employee habitually carries out their work, and where Rome 1 expressly provides at Recital 7 for consistent interpretation of its substantive scope and provisions with Brussels 1 (now Brussels 1a).

Having regard to CJEU case law and all the circumstances of the case, I have established on the evidence before me the following facts which are relevant factors in determining the place from which the complainant habitually carried out his work under his contract with the respondent. The complainant’s designated home base was Katowice, Poland, meaning that his duty periods and rotations, when he was carrying out his work with the respondent, commenced from and ended in Katowice, Poland.  The complainant’s duty periods or rotations were typically of 1 to 2 weeks duration.  The complainant’s per diem rate was calculated by reference to when he left his home base and when he returned to the home base.  Prior to the complainant’s employment with the respondent and during the period of the complainant’s assignment to the respondent, the complainant was working on flights in and out of the home base of Katowice.  This was not the case during the period of his employment with the respondent.  From January 2021, the complainant did not work on any flights in or out of the home base.  The duty records for this period up until the termination of his employment show the complainant positioning from Katowice for work on flights out of France and Germany, where the aircraft on which the complainant undertook pilot duties were based.  It is noted from the duty records that over 60% of the complainant’s positioning in the relevant period was from Katowice to France and France to Katowice.  Standby, reserve, off or rest time during duty periods and rotations were spent predominantly in France and Germany.   Training and line checks took place in Austria, the United Kingdom and France.  The complainant’s accommodation during duty periods was also predominantly in France and Germany.   On my review of the duty records from January 2021, when the complainant commenced employment with the respondent, the flights worked by the complainant were internal to France, between Germany and France, between France and the United Kingdom and internal to the United Kingdom.  The duty records showed a deviation from the foregoing on 3 occasions during the term of the complainant’s employment with the respondent; one of which included a flight worked by the complainant from France to Shannon airport.  The latter was the only evidence of the complainant having been in Ireland during the term of his employment with the respondent; that occasion involved one night’s accommodation for the complainant in Ireland. 

The fact that the respondent’s fleet of aircraft were registered in Ireland, that the complainant’s licence was with the Irish Aviation Authority and that he paid taxes in Ireland are not directly relevant in my assessment of the place where or from which the complainant habitually performed his work.

I am not therefore satisfied that Ireland was the place in which or from which the complainant habitually carried out his work for the respondent and that Irish law governs the employment contract.  Accordingly, having regard to the nature of my role and powers, I must conclude that I do not have jurisdiction to hear the complainant’s claim of unfair dismissal.

I have considered the need to ensure adequate protection for the complainant as the weaker contracting party having regard to Recital 23 of Rome 1 which provides:-

“As regards contracts concluded with parties regarded being weaker, those parties should be protected by conflict-of-law rules that are more favourable to their interests than the general rules.”

As the place of business through which the complainant was engaged is situate in Ireland, and the complainant has submitted that Irish law governs the employment contract, the rule in Article 8(3) of Rome 1 would appear more favourable to the complainant’s interests.

However, I am not satisfied that it is so favourable to the complainant’s substantive interests when regard is had to section 2(3) of the Unfair Dismissals Act 1977 which provides that:-

“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 dsuring 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 incorporated body of persons, had its principal place of business in the State during the term of the contract.”

It is clearly the case that at no stage was the complainant ordinarily resident or domiciled in Ireland during his employment with the respondent.  Accordingly, irrespective of my views on the application of Article 8(2), I am not satisfied the Unfair Dismissals Act 1977 can assist the complainant in this case.

For the reasons set out above, it follows that I do not have jurisdiction to decide the claim pursuant to the Unfair Dismissals Act 1977.

I find that I do not have jurisdiction to decide the claim pursuant to the Unfair Dismissals Act 1977. 

In such circumstances, my decision is to dismiss the claim.

Unfair Dismissals Act – Jurisdiction – Regulation (EU) No. 1215/2015 – Brussels 1a -  Regulation (EC) No. 593/2008 – Rome 1 – Applicable law – Article 8