ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002250
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 |
CA-00002062-001 |
20/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 |
CA-00002062-002 |
20/01/2016 |
Date of Adjudication Hearing: 20/04/2016
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 , Section 6 of the Payment of Wages Act, 1991 and Section 7 of the Terms of Employment (Information) Act, 1994 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
On the 3rd December 2014 Respondent (St Lucia) Limited on behalf of Irish registered Respondent IRL entered into an employment agreement with the complainant. The agreement was Irish law governed. The agreement provided for the complainant to work in Trinidad in the Caribbean as a Construction Manager, he having previously worked with Respondent for many years. The employment arrangement provided for a monthly salary of US$8,000. Mr. X started with Respondent on the 5th January 2015. He was subsequently advised on 11th February 2015 by Respondent that his employment would be terminated with immediate effect. His employment was not finally terminated until after an Appeal Hearing on 6th March 2015. However, he was not paid for the period between 11th February 2015 and 6th March 2015 and Respondent is obliged to make payment. Further, one month’s notice of termination is required under the terms of the employment contract, albeit payment can be made by Respondent in lieu of the requirement to work out notice. Respondent instructed the complainant that he would not be required to work out his notice and so pursuant to the terms of the Employment Agreement, Respondent are also obliged to pay the complainant one month’s salary on termination of the employment arrangement. Respondent, by way of email dated 21 July 2015 from its General Counsel, Ms XX accepted as much and indicated that payment would be arranged but that too has been resiled upon. |
The complainant was offered a job with Irish registered company Respondent IRL , accepted a job with Respondent, confirmed that it was pleased that the complainant had accepted a job with it and so on. The natural and legal position is therefore that the complainant is entitled to receive his terms of employment from Respondent IRL .However, when the terms were finally issued in the form of an Irish law governed contract of employment; they were in the name of a St Lucia registered limited company. This manoeuvre was openly and brazenly admitted by Respondent staff to be a device the company management were using in the hope that it would shield Respondent from Irish employment law in relation to its Trinidad operations. The entity used for the manoeuvre is named Respondent (St Lucia) Limited and the complainant never had any dealing whatsoever with that company, never met anybody from that company, and he never travelled from Trinidad to St Lucia. Notwithstanding that the place where the employment services were to be provided was Trinidad, for the reasons set out herein; the complainant had an entitlement to receive terms from the Irish incorporated entity with which he had contracted i.e. Respondent IRL. |
The Complainant did not attend the hearing and no explanations in mitigation were received by the Adjudication Officer on the day.
Respondent’s Submission and Presentation:
A detailed Submission was received from the Respondent
Main points were
- As the employment was outside of Irish jurisdiction it is not possible for the WRC to deal with this matter.
- The Complaint was out of time.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act and the relevant redress provisions of the Payment of Wages Act, 1991 and The Terms of Employment (Information) Act, 1994
Issues for Decision:
Jurisdiction of EWC to hear case, Payment of Wages, 1991 claim and The Terms of Employment (Information) Act, 1994 claim
Legislation involved and requirements of legislation:
Workplace Relations Act 2015, Payment of Wages, 1991, Terms of Employment (Information) Act, 1994
Decision:
As the Complainant failed to attend the hearing and I am satisfied that he was properly notified and no mitigating explanations were received the claim is dismissed for want of prosecution. The claim is dismissed.
Dated: 15 July 2016