Complainant

Respondent

Parties

Joanna  Zalewska

Blackstace Technologies Limited

Representatives

  Self

 None – No appearance

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-00049370-001

28/03/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00049632-001

12/04/2022

The Complainant was employed by the Respondent from on or about the 23rd of December 2021 performing public affairs and marketing duties pursuant to a contract of employment. This contract contains a recital to the effect that the Complainant’s employment was transferred from a Polish Company to the Respondent which is a company registered in Ireland.

This case and the related case ADJ-00037923 were heard together. Both complainants gave evidence on affirmation and made submissions which were considered together. They were both employed by the Respondent Company from on or about the 23rd of December 2021 under contracts which were in similar terms.

The Complainants worked for the months of January, February, March and April of 2022. They were not paid any salary for the months of February, March or April of 2022. They initiated the present claims in March and April of 2022 but continued working into April 2022, by which time it became clear to them that they were not going to receive any remuneration from the Respondent, and they ceased all work for the Respondent that month. The Complainants alleged that in failing to pay their salaries, for the Respondent made unlawful deductions from their wages which they sought to recoup pursuant to the Payment of Wages Act 1991 (as amended).

When the matter was first listed the Complainants appeared and made oral submissions. However, they had no documentation pertaining to their employment and the matter was adjourned to facilitate the provision of submissions and documentation. A contract was provided by the present complainant, but this was written in Polish. The cases were relisted and both Complainants were directed to procure translations of their contracts of employment together with any further documentation relevant to their claims also to be translated, if not in English. The matter was further re-listed on the 9th of June 2025 by which time the Complainants had provided translated versions of their contracts which were submitted in evidence. The Complainants also provided further oral submissions and gave evidence on affirmation on that date.

At no stage during the progress of the proceedings was any communication of any sort received from nor was there any appearance by or on behalf of the Respondent.

The Complainant initiated two claims to the WRC as follows:

CA-00049370-001 – A claim pursuant to section 6 of the Payment of Wages Act, 1991

The submission made in the Complainant form included the following:

My employer has not paid my salary for February 2022. I assume that March will also be without salary. Currently, I am on sick leave due to health problems resulting, among others, from the situation at work, which caused a breakdown and lowered my self-esteem. As far as I can tell, no salary was paid to any of the employees. The amount due to me under the employment contract is € 3625 gross. To facilitate the investigation, I will outline an employment profile briefly. I have been working at Blackstace Technologies Limited (BTL) since January 14, 2022. Mateusz Kucharczyk is a Director. The parent company of Blackstace Technologies Limited is Blackstace Limited, which covers 100% of the subsidiary's shares. The person managing the company is Marcin Kucharczyk. I have sent a request for payment by e-mail. However, there is no trace of replies to the e-mail. The lack of remuneration had a negative impact on my obligations to the bank and cost me a lot of problems

The Complainant sought to recover salary payment for the month of February which she contended became payable on 10/03/2022. Her complaint form was received by the WRC on 28/03/2022

CA-00049632-001 - A claim pursuant to section 6 of the Payment of Wages Act, 1991

Referring to my complaint of March 28, 2022. I would like to inform you that my employer did not

pay me another salary. He is currently should pay my salary for February and March. I need your help in recovering the salaries due to me. I found in a very difficult financial situation. All the employees found in this situation. Below I am sending my complaint of March 27, 2022, contact to the employer, the company that owns 100% of BTL and the account number from which I get my last salary (it was the salary for January).

The Complainant sought to recover salary payment for the month of March 2022 which she contended became payable on 10/04/2022. The complaint form was received by the WRC on 12/04/2022

There was no appearance by or on behalf of the Respondent

Both the present Complainant and the Complainant in the related case gave evidence on affirmation with each one acting as a witness for the other. The summary of the facts which follows is thus common to both claims. The evidence was uncontroverted.

The Complainants worked for a Polish Company providing public affairs and marketing for that company. In December 2021 they were presented with contracts of employment whereby they understood that their employment was being transferred to a company registered in Ireland which is the Respondent company. The reason for the transfer of their employments to the Respondent was never explained.

The Complainants relied on the contracts with the Respondent which were submitted in their original form written in Polich, together with translations of those contracts. They affirmed that the translations provided were fair and accurate translations of the original contracts.  While acknowledging that the contracts made several references to the Polich Labour Code the Complainants contended it was their understanding of the contracts and of the situation as they understood it that they were employed by an Irish registered company. This being so, they contended that Irish Law should govern their employment and that they were entitled to make the present claims.

The Complainant’s salary was PLN 17,000 per month. This is the current equivalent of €3982.58 per month.

The Complainants worked for the Respondent in January 2022 and were paid for that month. They then continued to work for the Respondent through the months of February, March and April of 2022 but they were not paid any salary for these months, and they were unable to make any form of contact with any individual associated with the Respondent to address the non-payment of their salaries. Eventually, having concluded that the Respondent was not going to pay their salaries, they ceased working for the Respondent in or about April 2022.

Jurisdiction and Applicable Law

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. 

Jurisdiction

The contracts of employment identify the employer as follows:

“Blackstace Technologies Limited, a company incorporated under Irish law with its registered office in Ireland, at: 25–28, North Wall Quay, Dublin 1, Dublin, D01 H104, Ireland, registered in the Companies Registration Office Ireland, operating under the Department of Enterprise, Trade and Employment, under number 705727, hereinafter referred to as the "Employer" or the "Company", represented by Mateusz Kucharczyk – Director”

I am satisfied that the complainant was employed by the respondent pursuant to this contact of employment. 

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.

Applicable Law

The Workplace Relations Commission was established by the Workplace Relations Act 2015.  That Act is the fundamental source of an adjudication officer’s jurisdiction.  Section 41 of that 2015 Act specifies the complaints and disputes that may be referred by the Director General for adjudication by an adjudication officer including complaints pursuant to the Payment of Wages Act 1991. In relation to such claims the function of an adjudication officer is prescribed by section 41(5) of the Workplace Relations Act under which the claim has been referred.  Therefore, the Irish legislature has conferred jurisdiction on adjudication officers to adjudicate on and make a decision in relation to a complaint, dispute or claim referred to it under certain specific, identifiable pieces of Irish legislation including the Payment of Wages Act 1991, and in accordance with the relevant redress provision of that enactment.

Rome 1 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 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.”

Choice of Law

There is no clause in the contracts whereby the law of Ireland or Poland or any other country is specifically stated as governing the contract. There is thus no express Governing Law clause as such. There are numerous references to the Polish Labour Code throughout the contracts. However, at the end of the contracts a Notice appears which is stated to take effect as and from as and from December 22, 2021, as follows: 

“we hereby confirm that, following the previously provided information, part of the workplace of the Transferring Employer will be transferred to a new employer, i.e. Blackstace Technologies Limited, a company governed by Irish law, with its registered office in Ireland, address: 25-28 North Wall Quay, Dublin 1, D01 H104 Dublin, entered in the register under number 705727, ("Receiving Employer"), effective January 1, 2022 ("Transfer Date").”

[Emphasis added]

It would appear that the Contracts signed by the Complainants were poorly drafted and they give the impression that an effort was made to graft a second contract onto the wording of a previous contract. The result is that it is impossible to ascertain the intentions of the parties as to the applicable law governing the contract. For this reason, I find that Article 8 (1) cannot be applied.

As the parties did not choose the law to govern the contract within the meaning of Article 8(1), I must consider the potential applicability of Article 8 (2) This provision applies where there is effectively no choice of law clause and it directs that “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”

In the present case the Complainants were only employed for a short time and during this period they said that they worked from home In Poland. This would indicate that the place where or from where the Complainants worked was Poland. However, there are a number of other considerations.

Firstly, the transfer of the Complainants’ employment to the Respondent took place in December 2021 at a time when Covid19 restrictions were in place and employees throughout the world were generally working from home.

Secondly the contracts of employment specified that the place of employment was as follows:

“Due to the nature of the tasks performed by the Employee, the place of work shall be the Company’s registered office and the entire territory of Poland or any other location where the Company conducts its business, provided that the Employee’s presence is required for the proper execution of duties under this Agreement”

This clause refers to “the Company’s registered office” which, according to the employer’s identity as quoted above, is “25–28, North Wall Quay, Dublin 1, Dublin, D01 H104, Ireland”. The clause then continues with “the entire territory of Poland or any other location where the Company conducts its business “. The wording as to the employee’s presence being “required” is meaningless.

Thirdly, to further add to the confusion, the contracts contain the notice (quoted above) that as and from December 22, 2021, the employment transferred to the Respondent “a company governed by Irish law”

Fourthly, it would appear that whatever business venture was contemplated by the Respondent failed or, for whatever reason, was not progressed in the brief period during which the Complainants were caused or permitted to perform work without being paid. In such circumstances it is impossible to say what would have been the working norm, whether the employees would have been required to work in the Registered Office in Dublin, in any other office in some other country, from home in Poland or from home anywhere else in the world. The business appears to have failed or been abandoned before any clear pattern emerged from which a determination as to the place in which or failing that from which the Complainants “habitually carrie[d] out [their] work in performance of the contract” can be made. 

In Nogueira & ors v Crewlink Ireland Ltd (C-168/16) the Court of Justice noted that to prevent exploitation of the concept, in determining the place from which an employee “habitually carries out his work”, account must be taken of all the factors which characterise the complainant’s work, albeit that the home base concept is a significant factor. Accordingly, although the Complainants worked at home in Poland for the brief time that they did, this factor although significant cannot in the circumstances of this particular and unusual case, conclude the issue.

Applying the foregoing factors, I find that I cannot determine with any degree of logic or reason the applicable law using Article 8 (2). Where this situation arises, Article 8 (3) must be applied and this article states that the contract “shall be governed by the law of the country where the place of business through which the employee was engaged is situated”. The Complainants were engaged by the Respondent, which in the present case must be equivalent to “through” the Respondent. The Respondent is an Irish registered company  which - as the contracts state - is governed by Irish law and it thus follows, pursuant to Article 8 (3), that the applicable law governing the contract should be that of Ireland.

Accordingly, these claims are properly before me as an adjudication officer of the WRC and the applicable law is Irish law and in particular, the Payment of Wages Act 1991 (as amended).

On the uncontested evidence of the Complainant, I find that the Complainant was not paid contractual salary for work done in the months preceding the presentation of the claims being the months of February and March 2023. I find that the monthly salary was properly payable and was referable to the Complainant’s employment and that the failure to pay constitutes an unlawful deduction within the meaning of that term in the Payment of Wages Act 1991 (as amended) and that accordingly the claims are well-founded.

By way of redress I am empowered by Section 6 of the Payment of wages Act 1991 (as amended) Act to award such compensation as I deem reasonable subject to a maximum of twice the amount of the deduction, as provided for in Section 6 (1) (b). In the present case I cannot award compensation for the month of April 2022 since this payment did not become due until after the claims were presented. However, I deem a sum representing twice the deductions of salary made in March and April 2022, in respect of accrued salary entitlements for the months of February and March 2022, to be reasonable in the circumstances and accordingly the Respondent is directed to pay to the Complainant the total sum of €15,930.32 by way of compensation for breach of Section 5 of the Payment of wages Act 1991 (as amended).

CA-00049370-001

And

CA-00049632-001

The Complaints pursuant to Section 6 of the Payment of Wages Act 1991 are well-founded. The Respondents shall pay the sum of €15,930.32 to the Complainant for breach of Section 5.

Payment of Wages Act 1991 – Section 5, 6 (1) (b) - Regulation EU No. 1215/2012 - Regulation (EC) No. 593/2008  - Article 8 – Jurisdiction – Applicable Law – Choice of Law - Nogueira & ors v Crewlink Ireland Ltd (C-168/16)