ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00049117

Parties:

Complaints:

Date of Adjudication Hearing:  28th May 2024& 9th October 2024

Workplace Relations Commission Adjudication Officer:  Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015; Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 7 of the Terms of Employment (Information) Act, 1994following the referral of the complaints to me by the Director General, I inquired into the complaints  and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.

The required Oath / Affirmation was administered to all witnesses present. The legal peril of committing Perjury was explained to all parties.

No issue regarding confidentiality arose.

Background:

1:        CA-00060355-001 - Unfair Dismissals Act

Opening Legal Issue – Section 2 (3) (a) of the Unfair Dismissals Act,1977

At the opening hearing on the 28th May 2024 a very extensive discussions took place on the above Section of the 1977 Act. Considerable European and Irish/UK case law was cited.

The Adjudication Officer requested Supplementary Submissions, and a resumed Hearing was finally held on the 9th October 2024. Again, a very extensive discussion between the Parties and the Adjudication Officer took place on the issue of legal definition / practical understandings of the concepts of Residence/Domicile, as possibly applicable to this case.

For convenience Section 2 (3) of the 1977 Act is quoted below

(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

 (Highlight by Adjudication Officer).

1:1       Respondent Summary Arguments

The Respondent argued that the Complainant had never been “ordinarily resident” in the State – the Republic of Ireland, for the period of the Contract of Employment. He was at all times materially resident and domiciled in Portugal since late 2020.

Evidence was presented by written business records, Hotel bookings and Airline flight schedules to demonstrate that the Complainant was, in effect never resident in the R of I during the period of the Employment Contract.

An address in South Dublin which was used in the WRC Complaint was a property which, it was acknowledged, was owned by the Complainant for some considerable time.

However, he was never resident there or anywhere else in the R of I during the Term of the Contract - September 2022 to November 2023. On brief and infrequent visits to Ireland he had always requested that Hotel accommodation be provided.

As such the Complaint cannot proceed as the Adjudication Officer can have no jurisdiction as per Section 2(3)(a) above.

1:2       Complainant’s Summary Arguments.

The Complainant demonstared that he had a considerable employment record in Ireland going back as far as 2003. He had been married in Ireland and had a young child, a son, born in Ireland. Both his son and his wife were Irish citizens. He produced extensive Utility Bills, in his name, for the South Dublin property. It was accepted that in the period of the Employment Contract both his dependents were living in Portugal.

None the less the Complainant cited extensive European case law in the area of Domicile and Legal residency to support his case.

The Complainant, in both his oral Testimony and his written submissions queried the applicability of the case law cited by the Respondent. Regulation (EC) No 593/2008 (Rome 1) and Article 19 on the law applicable to contractual obligations of same were extensively cited.

It was stated that the Respondent supplied Employment contract was vague on this issue, and it was never made clear that Irish legislation would not apply, the contrary was in fact stated.

He also protested that references to the place of abode of his wife and especially his child was not proper to the Hearing.

1:3        Adjudicator View and Conclusion.

1:3:1       Status of Section 2(3) (a) of the Unfair Dismissals Act,1977.

The Legal positon of Section 2(3)(a) is that it is a piece of Irish Legislation that has never been amended and stands unaltered.

It is true that there is now an extensive body of Law in the area of Residence and Domicile. The very considered, lengthy and most learned Irish Law Reform Commission Paper of 1983 LCR-7 of 1983, would be the highlight example.

There may be much in the cited Law Reform Commission Paper that might be of useful consideration to the parties in this case.

The former Employment Appeals Tribunal in case of Ferrami v Scim Ireland Ltd -UD 1104/2014 is worth considering. The Tribunal was, in the view of the Adjudication Officer, having studied the case closely, unhappy with the Legislative “landscape” but felt that as Section 2(3)(a) remained on the Irish Statute books they had no option but to apply it.

“The fact remains that the claimant was neither ordinarily resident in the State or domiciled in the State at any stage during the term of the contract and therefore he is precluded from availing of the provisions of the Acts. What is disturbing is that the Respondent has bound the claimant into a contract of employment that requires him to issue proceedings in this jurisdiction concerning the termination of his employment but given the particular facts of his case he can never succeed therein. This would seem contrary to the general provisions that should apply in relation to the protection of workers. Unfortunately, even if this clause did not appear in the employment agreement the claimant would still fall foul of Section 2(3)(a)”

Likewise in Adjudication ADJ-00039682 of 30th of April 2024 the Adjudication Officer, Ms Turner, considered at length the entire Legislative area both in Irland and at EU level regarding residence and place of work.

She stated in conclusion

“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.”

In this case and following further  lengthy discussions at the 9th October 2024 Hearing the Adjudication Officer postponed matters to assist / allow the Complainant produce evidence, even under very generic headings such as Club Memberships, Parish Records, Letter from a Parish Priest or Minister, Garda Interactions, School attendce evidence to sustain a Residence claim. Regrettably, for his viewpoint of view, he could not produce any such evidence.

The Travel & Flight records from the Respondent pointed to a sustained period of actual physical living outside of the Irish State.

The area is discussed in “Byrne and McCutcheon on the Irish Legal System” of November 2020, Bloomsbury Professional and is considered also by Mr T Kerr SC on his commentary of Section 2 Subsection (3). Interestingly Mr Kerr refers to Buckle v Lee Overlay Partners Ltd UD 1509/2003 where the Tribunal indicated that

“There was scope for amending the Act “to cater for modern needs” to address the situation where the work was done via e mails and laptop computers with no necessity for the employee to be physically present within the jurisdiction.”

Accordingly, and following the quoted cases cited above (UD 1104/2014 & ADJ 39682) and the Legal commentary the provisions of Section 2 (3) (a) of the Unfair Dismissals Act,1977 still stand and the Adjudication Officer can have no jurisdiction in the case.

The claim must fail.

2:        CA-00060355-002 - Terms of Employment (Information) Act, 1994

Views of the Parties

The Complainant argued that his Terms and Conditions of Employment were never fully stated and seemed to rely on documents from a Recruitment Agency at the time of his appointment/job offer.

The Respondent argued that all the Terms and Conditions were made know to the Complainant and even if a formal “contract”  as set out in the precise format of the Act of 1994 had never been  offered it was a non-argument as it was of absolutely no detriment , financial or otherwise , to the Complainant.

Adjudication View.

Having studied the extensive documentation advance in this case the Adjudicator had to come to the view that the provisions of Sections 3 and 5 of the 1994 Act had not been followed to the required degree.

Accordingly, some redress for a Breach of a Statutory right is due.

3:        Findings and Conclusions:

4:        Decision:

Section 41 of the Workplace Relations Act 2015, Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 7 of the Terms of Employment (Information) Act, 1994requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions of the cited Acts. Under Schedule 6 of that Act.

4:1        CA-00060355-001 - Unfair Dismissals Act

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.

As set out in the Opening Section of this Adjudication the Complainant failed to satisfy the requirements of Section 2(3)(a) of the Act. Accordingly, the complaint must fail.

4:2        CA-00060355-002 -Terms of Employment (Information) Act, 1994

The complaint is deemed to be Well Founded.

Compensation of two week’s pay -approximately €4,280 is awarded under Section 7 of the Act.

For clarification this is a Compensation Award for Breach of a Statutory Right and is not related to renumeration.

Dated:   27th of January 2025

Workplace Relations Commission Adjudication Officer:  Michael McEntee

Key Words: