Complainant

Respondent

Parties

Helen  Holland

Integrity360 Europe Ltd

Representatives

Tiernan Lowey B.L. instructed by Hayes Solicitors LLP

Michael McCormack B.L. instructed by William Fry Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00063261-002

02/05/2024

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

CA-00063261-003

02/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00063261-005

02/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00063261-006

02/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00063261-007

02/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00063261-008

02/05/2024

Preliminary Issue; Submission of Respondent

The respondent is a limited company registered in Ireland and engaged in the cyber security business. The  complainant commenced employment as a “Key Account Manager EMEA” on June 8th, 2017.

On February 19th, 2024, the respondent gave her notice of the termination of her employment, with effect from  April 30th,  2024. This letter was received by her on February 21st, 2024.

On May 2nd, 2024, she lodged a WRC complaint. While the respondent disagrees with the complainant's gross monthly pay as stated in her complaint form, and notes that she clarified that her gross monthly pay was €3,700 in an email to the WRC on 20 May 2024. This is the correct salary.

The complainant has lived and worked in Germany at all relevant times and her employment duties were in the area of business to business sales to clients and potential clients predominantly based in mainland Europe and the UK. Her employment duties were carried out from Germany, and she occasionally travelled as part of her work, but never to the extent that her main location changed from Germany; it was primarily in mainland Europe or the UK.

Her salary was paid into a German bank account and subject to applicable tax and social security deductions in accordance with German requirements. She took annual leave on German public holidays.

Preliminary jurisdictional objection

The employment is governed by a contract of employment dated June 7th, 2017, and certain other documents She signed it on June 2nd, 2017, and the respondent on June 5th, 2017.

At the time of the Contract of Employment the company name was “Advantio Limited;” this changed to “Integrity360 Europe Limited” on January 31st, 2024, but it remains the same legal entity and there has been no transfer of undertakings or any change to the parties’ employment relationship.

The Contract of Employment provides, in clause 18, that:

“Governing  Law

In addition to Irish legislation, this contract of employment is governed by the law of Germany.”

The Contract of Employment also provides, in Schedule 1, that:

“This Agreement shall be governed by and construed in accordance with the laws of Ireland/Germany and the Courts of Ireland/Germany shall have sole jurisdiction in any proceedings between the parties hereto.

As this Agreement will be governed by both Irish and German legislation, there may be some legislative conflicts, however we will endeavour to abide by the relevant jurisdiction as so far as possible, in line with what the business see’s [sic] most appropriate.”

In her Complaint Form, the complainant acknowledges that her contract of employment “expressly states” that her “employment is governed by both Irish and German law”.

The Contract of Employment provides, in Schedule 1, that the Complainant’s place of work is in Germany (“and/or any other location linked to the business”). In her Complaint Form, she describes her work address as “Sodener Weg 12, 65760 Eschborn, Germany”.

Choice of law

The Rome I Regulation, which is directly effective and binding in Ireland, provides that a choice of law by the parties is effective only if it is “made expressly or clearly demonstrated by the terms of the contract or the circumstances of the case”.

The purported choice of law in the Contract of Employment herein is manifestly unclear, as it refers to the laws of two different countries (expressly acknowledging that the laws may conflict) without providing any means for selecting between the two jurisdictions for the applicable law or specifying how one or both of the parties might choose which of the laws would apply in any particular case or to any particular aspect of the employment. Even in the absence of the provisions of Article 3(1), the choice of law clause would, under the ordinary principles of contractual interpretation, be void for uncertainty.

Article 8 of the Rome I Regulation contains specific provisions for the choice of law in individual employment contracts. Article 8(2) provides as follows (emphasis added):

“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.”

As there has been no valid choice of applicable law pursuant to Article 3 in this case, the complainant’s employment relationship is governed by the law of the country in which she habitually carries out her work in performance of her employment – i.e., Germany. The fact that the respondent is registered in Ireland is not relevant to this legal position.

Except for the ambiguous references to Irish law – which are meaningless in the context of simultaneous references to German law, the only connection between the Contract of Employment or the Complainant’s broader employment relationship is the fact that the employer was a legal entity registered in Ireland. That fact is not sufficient for Article 8(4) of the Rome I Regulation (the so-called “escape clause”) to apply.

Determination of place of work

Regan and Murphy observe that:

“Various factors have been identified by the CJEU as being relevant to [the analysis of where the employee habitually carries out his or her work]. They include where the employee actually lives, where the employee has his base or principal place of work from which he prepares for trips and returns after the performance of duties, where the employee pays tax and social security, the State in which the employee is paid his salary, the country where the employee or entity to which he reports is based, or whether or not he is a director of other entities in other jurisdictions.”

Regan, Maeve & Murphy, Ailbhe; Employment Law, 2nd edition, Bloomsbury Professional, 2017

The European case of Mulox IBC Ltd v. Geels Case C–125/92 concerned a Dutch national living in France and employed by an English registered company. The employee used his French home as an office and place of operations, making frequent trips throughout Europe. The CJEU held that the place where the obligation characterising the contract is normally performed is that where, or from which, the employee principally discharges his obligations to his employer. In determining the place of performance, the CJEU took into account the fact that the employee fulfilled his duties from an office situated in France, he had established his residence there, and it was place from which he carried out his activities and to which he returned after each business trip.

The CJEU decision in Schlecker v Boedeker Case C–64/12  shows how where a contract of employment does not contain an express choice of law clause (the contract stated that the mandatory laws of Germany applied to it but did not contain an express choice of law clause), the applicable law may not be the law of the country where the employee habitually works, if there is a closer connection to the law of another country. The CJEU stated that significant factors suggestive of a connection with a particular country would include the country in which the employee pays taxes, the country in which the employee is covered by a social security scheme and pension, sickness insurance and invalidity schemes, salary determination and other working conditions.

In the alternative, if there has been a valid choice of applicable law pursuant to Article 3, it this choice can only be that the contact is subject to German law, and not Irish law. This is clear from the facts set out in paragraphs 8 to 13 above.

Having regard to the foregoing, the respondent terminated the employment in accordance with and fully in compliance with the relevant German law, and the letter of termination of February 19th,  was drafted having regard to German law and expressly refers to the German Social Security Code III (Sozialgesetzbuch III) and the German Civil Code (Bürgerliches Gesetzbuch)).

The jurisdiction of the WRC to hear and determine employment complaints arises only from the specific employment legislation relevant to each complaint (and relied upon by the complainant in her Complaint Form as summarised in paragraph 5 above) – i.e., it arises directly and exclusively from Irish employment law. Therefore, if her employment is not governed by Irish law, the WRC has no jurisdiction in any of the complaints in this matter.

The determination of jurisdiction by reference to Regulation (EU) No. 1215/2012 (the Brussels I Regulation (recast), or otherwise, does not arise. If the appropriate legal jurisdiction was determined to be Ireland, it might be possible for some legal proceedings to be heard and determined by the Irish courts applying German law to the case. However, the WRC is a creature of Irish statute and has no jurisdiction to hear a matter by applying German law.

The determination of the WRC’s jurisdiction can be made in this matter by applying binding, and directly effective EU law to the contractual terms and other established facts. The jurisdictional objection should be determined as a preliminary issue before any substantive hearing as provided for in Section 79(3A) of the Employment Equality Act 1998 (as amended).

This is a case in which the preliminary jurisdictional issue is so fundamental to the WRC’s jurisdiction that it would not have any jurisdiction whatsoever to proceed to hear the substantive matter unless it has determined that it has such jurisdiction, i.e. unless it has first determined that the employment relationship is subject to Irish law, and specifically subject to the specific legislation under which the various complaints are made. To proceed otherwise would result in the WRC acting ultra vires.

Relevant case law – Supreme Court

In Adigun v. Equality Tribunal. [2015] IESC 91 the Supreme Court dismissed an appeal from the refusal of the High Court of an application for judicial review of the conduct of a hearing by an equality officer. The complainant/applicant argued that holding a preliminary hearing in relation to his alleged employment status when the substance of the case related to victimisation and discrimination amounted to a breach of the fair procedures guaranteed under the Constitution and was incompatible with Article 6 of the European Convention on Human Rights. The Supreme Court stated, regarding a statutory tribunal’s power to deal with an issue (in that case the question of a party’s employment status) by way of a preliminary hearing, that:

“15. While it is correct to argue that a unitary trial is the normal and most satisfactory method of proceeding with a case in court, there are also many circumstances where the trial of a preliminary issue may resolve the substance of a legal dispute. Even apart from the subsection quoted above [section 79(3A) of the Employment Equality Act 1998], it is within the scope of fair procedures before any judicial or quasi-judicial body for an issue to be isolated and tried in advance of the main hearing provided that can be done fairly. Sometimes, the parties will consent to that. The advantage of the Employment Equality Acts is that the circumstances under which such a course may be taken by the Equality Tribunal are clearly spelt out.…

The resources of courts and tribunals are limited. It is a pointless exercise to engage in a trial of fact over several days when whether or not the resolution of such facts may yield any redress to the claimant looms is clearly the first hurdle that he or she must cross. That can be fairly isolated and tried in advance.…

16. … It is within the scope of the Acts that preliminary issues can be tried and ruled on, either in advance of the substantive hearing of which they form part, or in order to obviate the necessity for such a hearing. Every tribunal and court has a duty to move with reasonable expedition. Litigation is a stressful and unfamiliar experience for those who initiate a claim or who are called on to respond. …”

In County Louth VEC v. Equality Tribunal [2016] IESC 40   the Supreme Court also dismissed an appeal from the refusal of the High Court of an application for judicial review of the conduct of a hearing by an equality officer. The Supreme Court stated, regarding a statutory tribunal’s power to deal with an issue (in that case the question of the scope of matters covered by the complaint) by way of a preliminary hearing, that:

“35. As mentioned earlier, s.79(3A) of the 1998 Act, as amended, provided that a party may apply to an Equality Officer to determine certain matters (including time limitations), as preliminary issues. While one might infer that implied subtext to the appellant’s case is the suggestion that the Officer might have directed a preliminary hearing, no such complaint was made in the judicial review proceedings. On the basis of the authority of Aer Lingus Teo v. The Labour Court [1990] ILRM 485, considered later, such an application would have been very unlikely to succeed. The principle is that the Officer should conduct the investigation without interruption....

38.  Even in the absence of this statutory provision [section 79(3A) of the 1998 Act], however, I would be quite prepared to imply such a jurisdiction from the conferring provisions of the Act. Where, as in this case, a body is entrusted with the power to investigate and thereafter to adjudicate, it must in my view likewise have the authority to determine whether a claim is or is not within its jurisdiction. This must be taken as the situation unless the legislation stipulates otherwise: no such indication appears in this case.

39.  The judgment of Davitt P. in The State (Attorney General) v. Judge Durcan [1964] I.R. 279 supports the proposition that a statutory body, such as a tribunal, is the appropriate entity to determine in the first instance whether the claim before it is within its jurisdiction. The learned President stated at p. 289 of the report that: -

‘[W]here the Legislature clearly provides that a Court is to have a limited jurisdiction dependent upon the existence of a certain state of affairs, the Court, before purporting to exercise its jurisdiction, will inquire and decide whether the requisite state of affairs does exist; but its decision is not the factor upon which its jurisdiction depends.

If its decision is wrong and the requisite state of affairs does not exist in fact, then what the Court does in purported exercise of its jurisdiction is done without, and in excess of, jurisdiction.’

Similarly, it was acknowledged in Ryanair v. The Labour Court [2007] 4 I.R. 199 that the Labour Court was the appropriate body to inquire into its own jurisdiction, albeit that it is not entitled to make legal errors when doing so.

...

56.  The position here has some resonances too in the decisions of the High Court, and this Court on appeal, in Aer Lingus Teoranta v. The Labour Court [1990] ILRM 485. As Carroll J. pointed out in the High Court judgment in Aer Lingus, it is not obligatory for an Equality Officer to rule on a time issue ‘any more than a court is obliged to hear a preliminary issue on whether a claim is statute barred or not’. That judge laid emphasis on the fact that tribunals, engaging in this important form of work, must be allowed a discretion in the running of their affairs, as to whether to have a preliminary hearing, or whether to deal with all questions, including that of receivability, at one hearing. Subject to comments in the conclusion section of this judgment, I agree with this observation.

57.  On appeal in this Court, in Aer Lingus, Walsh J. approved this observation, expressing the view that it would be ‘far preferable’ that matters should not be brought to the High Court on a point of law, until after the determination of the Labour Court, as to any matter of law arising, had been made. Walsh J. laid emphasis on the fact that Carroll J. had ‘correctly’ mentioned the fact that the Labour Court had not made any findings on the merits of the case, and that, if that had been the position, he would have been content to let the matter go back to the Labour Court.”

The Supreme Court also stated, obiter, that:

“41. In a slightly different context, I have earlier referred to s. 79 of the 1998 Act (para. 37 supra), but that provision is also relevant for different reasons. Under subs. (3A) of that section, as one can see, the Director is given power to determine by way of a preliminary issue any of the matters therein mentioned.

1.     No formal application has ever been made for the holding of such a hearing but, at least on one reading, the submission made by the VEC at the commencement of the inquiry, though advanced very late in the day, may be considered to be such a request. That was refused by Ms. Murtagh. It is clear that the provision in question is discretionary and that she is not bound in any way to accede to such a request.

2.     Even without such a statutory provision, however, I would be quite satisfied that, subject to overall fair procedures, an equality officer has a sizeable degree of latitude in deciding how the hearing before her should be conducted. This conclusion is supported also by the decision in the case of Aer Lingus Teoranta v. Labour Court [1990] I.L.R.M. 485 where it was held, albeit in the context of the Labour Court, that such a body could decide whether the complaints were made within time or not, either by way of a preliminary inquiry or as part of a unitary hearing involving also the merits of the case. Walsh J., speaking for the Court, put the matter as follows: ‘The Labour Court is quite free to have [a preliminary] hearing if it wishes but I do not think it is correct to claim that it must have such a hearing.’ I respectfully agree and would apply the same dicta to s. 79 of the 1998 Act.

3.     The type of decision made by Ms. Murtagh in this case can also be regarded as somewhat akin to a case management type decision, rather than one raising any issue of law. Even so, however, and whilst I would be very slow to interfere with an officer’s procedural autonomy, nonetheless that is not to say that she is totally at large in what decision she might make. There could, for example, be cases which would greatly benefit both the parties and the Tribunal in terms of efficiency, expedition and cost savings if the issues, or at least a decisive issue, were determined on a preliminary basis, rather than by way of a full hearing. Whilst I am not in any way suggesting that if faced with such circumstances her decision would be other than appropriate, I simply make the point to emphasise that, in certain admittedly rather exceptional circumstances, such a procedural decision may be amenable to judicial review. In the overall context, however, a significant degree of self-determination will be respected, subject to the overriding principles of natural and constitutional justice (see Calor Teoranta v. McCarthy [2009] I.E.H.C. 139).”

In UPC Communications Ireland Ltd v. Employment Appeals Tribunal [2017] IEHC 567 (5th October 2017) The High Court refused to interfere with the EAT’s decision that it had jurisdiction to hear and determine an unfair dismissal claim where it had decided that the dismissal did not take effect until the appeal process had concluded and that the claim was therefore within the six-month time limit. The applicant submitted that:

“…the Tribunal had no jurisdiction in respect of any claim which was not initiated within the time provided under the section: since its jurisdiction derived from statute the Tribunal should have ruled that it had no jurisdiction in the case which was clearly initiated outside the six month period.”  (Paragraph 28).

The High Court held that:

“The court notes that unlike section 3 of the [Unfair Dismissals Act 1977] which prohibits a rights commissioner from hearing a case in certain circumstances and section 41(6) of the Workplace Relations Act 2015 which provides that an adjudication officer ‘shall not entertain a complaint...if it has been presented after the expiration of the period of six months...’, section 8 [of the Unfair Dismissals Act 1977] is not specifically directed towards the decision-maker... However, the claim for redress must fail if it was not initiated by the claimant within time. It is a matter for the Tribunal to consider whether the claim for redress has been made within the appropriate period by exercising its statutory jurisdiction so to do. If the undisputed facts of and legal principles applicable to the case clearly and unambiguously establish that the claim was out of time but the Tribunal nevertheless proceeds to hear and determine the claim the earlier High Court authorities cited above indicate that such an error may constitute an error of jurisdictionwhich is challengeable by way of judicial review.” (Paragraph 41).  (Emphasis added.)

In Donegal Meat Processors v. Gillespie, UD/20/135 (Labour Court 12th February 2021) The Labour Court considered a statutory time limit as a preliminary matter and on the basis that if the Court determined that it had jurisdiction to hear the appeal the substantive matter would be heard on a subsequent date. The employee submitted that “[i]f summary dismissal had not taken place or was not justified; the complaint would have been made in time. The only way to decide this, therefore, would be to hear the substantive case to determine if summary dismissal could be justified.” The Labour Court rejected this submission, and held that:

“The Court does not accept that this is the proper approach. It is akin to asking the Court to exercise its jurisdiction before it determines whether or not it has jurisdiction, in the first instance.

In determining the issue of jurisdiction, the Court must confine itself to the nature of the termination without enquiring into the fairness or otherwise of the decision itself, having regard to the submissions made on the preliminary issue by both parties, the documents referred to therein and the relevant statutory provisions. Only if the Court determines that it has jurisdiction to do so can it go on to consider the fairness or otherwise of the dismissal itself.” (Emphasis added.)

The Labour Court went on to note that there was “no dispute about the facts that have given rise to this preliminary issue” and hold that the complaint was out of time. The case of Shaikh v. Infosys Limited15 was an unfair dismissal complaint in which the complainant contended that Irish law applied, whereas the respondent contended that Indian law applied, and the Adjudication Officer decided that he did not have jurisdiction to hear the case. The complainant appealed to the Labour Court, which stated that (emphasis added):

“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.” The Labour Court went on to conclude that it had jurisdiction to hear the substantive matters under appeal and therefore overturned the decision of the Adjudication Officer regarding jurisdiction.

A recent further example of the question of applicable law – and therefore jurisdiction – being determined as a preliminary issue was in Knapik v. ASL Airlines (Ireland) Limited16. This was an unfair dismissal case, in which the respondent raised an issue concerning the applicable law under the Rome I Regulation and the Adjudication Officer decided, correctly it is submitted, to proceed as follows:

“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.”

Finally, in the following recent example cases, WRC Adjudication Officers proceeded in accordance with the law as set out in the Supreme Court, High Court, and Labour Court decisions referred to above and considered jurisdictional issues as a preliminary issues, before determining that they should not proceed to consider the substantive complaints: Stapleton v. Acushla Ltd; Stella v. Atradius Reinsurance DAC, Murphy v. North Leinster Citizens Information Service

Complainant response to Respondent’s preliminary objection.

The complainant rejects the preliminary jurisdictional objection as without merit and misconceived. It is not disputed that during the course of her employment her place of work was in Germany (albeit she frequently travelled for work where the majority of her clients were located outside Germany). Pursuant to her contract of employment, she is entitled to bring the within claims in this jurisdiction before the WRC.

Clause 18 of the parties’ Contract of Employment dated June 2017 provides:

“Governing Law

In addition to Irish legislation, this contract of employment is governed by the law of Germany.”

It is clear from the foregoing that the parties have expressly agreed that the laws of two separate jurisdictions could govern the Contract of Employment. In a separate schedule, which also forms part of the Contract of Employment, it is provided that:

“This Agreement shall be governed by and construed in accordance with the laws of Ireland/Germany and the Courts of Ireland/Germany shall have sole jurisdiction in any proceedings between the parties hereto.

As this Agreement will be governed by both Irish and German legislation, there may be some legislative conflicts, however we will endeavour to abide by the relevant jurisdiction as so far as possible, in line with what the business see’s [sic] most appropriate.”

The respondent’s submissions focus primarily on the law concerning choice of law clauses without properly addressing the law in relation to choice of forum.

Within the EU, the rules on which country's courts have jurisdiction over a dispute are found principally in the Brussels I Recast Regulation (1215/2012), which came into force as of March 1st 2015.  (Regulation (EU) NO. 1215/2012 of 12 December 2012 on jurisdiction and the recognition of enforcement of judgments in civil and commercial matters)

The Recast Regulation changed the regime applicable to determining jurisdiction in respect of individual contracts of employment and expands that jurisdiction. It sets out an effective scheme for determining jurisdiction issues and avoiding multiple proceedings in different EU countries.

In general, where parties have agreed that the courts of a particular EU member state should have jurisdiction, that court will have jurisdiction. Unless agreed otherwise, that jurisdiction will be exclusive, meaning no other court will have jurisdiction.

The key provisions are set out in Article 21 which states:

‘1. an employer domiciled in a member state may be sued:

(a)   in the courts of the member state in which he is domiciled; or

(b)   in another member state:

(i) in the courts for the place where or from where the employee habitually carries out his work or in the courts or the last place where he did so …

2. an employer not domiciled in a member state may be sued in the court of a member state in accordance with point (b) of paragraph 1.’

Article 22 provides that: ‘An employer may bring proceedings only in the courts of the member state in which the employee is domiciled.’

It should be noted that the preamble to Recast Regulation, at Recital 18, recognises that employees are the weaker party in employment contracts and therefore require ‘more favourable’jurisdictionrules.

The CJEU has emphasised that where disputes related to employment contracts, the European rules concerning jurisdiction are aimed at protecting the weaker party.  (This point was emphasised by the Court of Justice of the European Union in its Judgment in Joined Cases C- 168/16 and C-169/16 Sandra Nogueira and Others v Crewlink Ltd and Miguel José Moreno Osacar v Ryanair.)

Those rules enable inter alia an employee to sue his employer before the courts which she regards as closest to her interests, by giving her the option of bringing proceedings before the courts of the Member State in which the employer is domiciled or the courts of the place in which the employee habitually carries out her work.

The CJEU has found that a jurisdiction clause, concluded before a dispute arose, and seeking to prevent employees from bringing proceedings before courts which do however have jurisdiction under EU legislation in this field, was not enforceable against those employees.  (Joined Cases C-168/16 and C-169/16 Sandra Nogueira and Others v Crewlink Ltd and Miguel José Moreno Osacar v Ryanair).

On the facts of this case, it is not disputed that the Respondent is domiciled in Ireland. So, pursuant to Article 21(1)(a), the complainant is entitled to maintain these proceedings in this jurisdiction.

If the respondent purports to rely on any ambiguity as to jurisdiction contained in the Contract of Employment, the complainant makes the following submissions:

a.     It is clear from the wording contained in Recital 18 of Brussels 1a and the related CJEU case law that the weaker party to an employment contract should be protected; and

b.     Pursuant to the contra proferentum principle, any ambiguity should be construed against the interests of the party that drafted the contract, which in this case was the Respondent employer.

Any contractual provision purporting to depart from Section 5 of Brussels Recast Regulations is required pursuant to Article 23(1) therein to have been entered into "after the dispute has arisen”. The contractual provision upon which the Respondent seeks to rely clearly pre-dates the dispute and cannot apply to depart from Article 21.

Where the Respondent seeks to rely on some discretion on its part to disapply Article 21 of the Recast Regulation, the complainant maintains that any such contractual provision is unenforceable.

The focus of the respondent’s preliminary objection is on the choice of law provisions in the contract of employment and the implications of Rome I Regulation (1Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I)

The Respondent purports to rely on the unusual inclusion of both Irish and German law as potentially governing any disputes between the parties. This is incorrect and the Respondent is estopped from relying on any alleged ambiguity to avoid its obligations under the contract of employment.    Article 8 of the Rome I Regulations deals with individual employment contracts and provides:

“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.”

Article 3.1, which deals with the parties’ freedom of choice provides:

“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.” [emphasis added]

Despite the respondent’s contention to the contrary, it is clear from the relevant wording of the Contract of Employment that the parties sought expressly to agree that the laws of two separate jurisdictions could govern the Contract of Employment. In the alternative, it is clear by virtue of the repeated references contained in the Contract of Employment to Irish employment legislation that the choice of law reasonably in the parties’ contemplation at all material times was, in fact, Irish law.

The complainant submits that any provision in the contract purporting to contract out of Article 21 and/or Article 3 is unenforceable. Moreover, the Respondent has at no point sought to rely on any such provision purporting to entitle it to abide by either Irish or German law in the event of any legislative conflict or otherwise.

The complainant is a former employee of the Respondent and/or its predecessor in title and worked for it from  June 8th, 2017, until her dismissal on  April 30th,  2024. 

She commenced employment as a Key Account Manager and in January 2020, she was promoted to Strategic Account Director in which role she continued until her dismissal. At all material times, the Complainant resided in Germany and operated as a remote worker for the Respondent.

The Respondent is a limited liability company having its registered offices in Sandyford, Dublin, D18 T6T7. It provides cyber security business services and is domiciled in Ireland.

While the complainant has notified the WRC of several complaints, she intends to proceed with her claims made under the Employment Equality Acts (CA-00063261-002 and CA-00063261-007), the Protection of Employees (Part-Time Work) Act 2001 (CA-00063261-006) and the Payment of Wages Act 1991 (CA-00063261- 003).

These specific elements of these claims can be summarised as follows:

c.     The respondent discriminated against the complainant by unlawfully dismissing her on the grounds of gender and age, contrary to the Employment Equality Acts1998 to 2015.

d.     It discriminated against her in relation to her conditions of employment on the grounds of gender and age, contrary to the Employment Equality Acts 1998 to 2015.

e.     It discriminated against the Complainant by victimising her, contrary to the Employment Equality Acts 1998 to 2015.

f.      The Respondent treated the Complainant less favourably as a part-time employee than a comparable full-time employee in relation to her conditions of employment, contrary to the Protection of Employees (Part-Time Work) Act 2001; and

g.     The Respondent has made unlawfully deductions from her wages by paying not paying her or by paying her less than the amount properly payable and due to her, contrary to the Payment of Wages Act 1991.

The complainant relies on her complaint form lodged with the WRC on 2 May 2024  and narrative set out therein, which, for ease, can be summarised, with some additions, as follows: 

The terms and conditions of her employment are contained in a contract of employment, dated 6 June 2017,which contract (together with a Schedule appended thereto):

i.     Makes repeated references to Irish employment legislation.

ii.     Provides that “in addition to Irish legislation” the contract would be “governed by the law of Germany”.

iii.     Provides that the contract shall be governed by the Courts of Ireland/Germany.

iv.     Confirms that the Complainant’s place of work will be from her home address in Germany; and

v.     Includes a retirement age of 65 years, extendable with Board approval.

In January 2020, the complainant was promoted to the position of Strategic Account Director and consistently exceeded her sales targets, significantly contributing to the success of the company. Her birthday was on April 16th, 2022, and it was agreed that she would continue in employment indefinitely.

On July 1st,  2023, her employment status changed from that of a full- time employee to a part-time employee but no other changes were made to her terms and conditions,

On January 9th, 2024, the Respondent’s Sales Director, Matt Tomlinson, informed her that her part-time status “did not align with the company’s future plans” and requested her retirement by the end of March 2024 to accommodate a new full-time replacement.

In an effort to keep her job, she indicated that she was willing to explore alternatives, including job-sharing or other flexible work arrangements to facilitate the company but these suggestions were dismissed by Mr Tomlinson.

 On January 23rd, 2024, the complainant asserted to Mr Tomlinson that she was not prepared to retire on age grounds and that her intention was to continue in her part- time position with the company. Mr Tomlinson told her that the company was ready to retire her with a three-month notice period and that it had decided to do so pursuant to the retirement age provision in her contract.

 Mr Tomlinson added that she did not fit the “profile” of the people required for the current sales team.

On  January 31st, 2024, the respondent’s name changed from Advantio Limited to Integrity360 Europe Limited but, according to the Respondent, remained the same legal entity, and no transfer of undertakings occurred.

On  February 21st, 2024, the complainant met remotely with Mr Tomlinson without any member of the Respondent’s HR team. He told her that he was serving her with an “Ordinary Termination” and when asked if he could provide a reason for the termination, Mr Tomlinson said he was not “allowed.”

The Complainant stated that she felt she was being discriminated against on age and gender grounds and as a part-time employee.

Approximately thirty minutes later, she received a letter by courier confirming the decision to terminate her employment following her meeting with Mr Tomlinson. While dated  February 19th, 2024. It was received on  February 21st, 2024), telling her that she was being “irrevocably released from duty to work with immediate effect” and that her employment would officially terminate on  April 30th, 2024.

 At the same time, her access to the company system was immediately cut and was told she could no longer communicate with customers or colleagues.

For the first time since her employment commenced, the respondent, an Irish entity, purported in this letter to rely on German law, including by making strong emphasis on the Complainant’s apparent obligation to actively seek new employment elsewhere.

On  March 22nd, 2024, she made a data access request, but to date the respondent has not provided her the personal data to which she is entitled, despite confirming that they do hold a number of items of her personal data.

On April 19th, 2024, the complainant’s solicitors wrote to the Respondent seeking undertakings to reverse the decision to terminate the Complainant’s employment, citing numerous breaches of her contractual and statutory rights.

On April 25th,  2024, the respondent’s solicitors, an Irish law firm, wrote to the complainant’s solicitors refusing to provide the undertaking sought. Other than to deny them, the letter contains no substantive response to any of the Complainant’s allegations, instead, purporting to avoid any liability on the basis that the allegations were “predicated on the misconception that [the Complainant’s] contract is governed by Irish law” before claiming that the unusual provision concerning the dual application of Irish and German law in the contract was a result of draftsmanship of the Respondent’s “corporate predecessor”;

The complainant’s employment terminated on  April 30th, 2024, and she lodged her WRC complaint form on May 2nd, 2024.

On May 31st,  2024, the complainant’s solicitors wrote to the respondent’s solicitors rejecting the jurisdictional argument and referring to a dispute in relation to her entitlement to commission, sought details of its commission plan and a breakdown of calculations related to her commission. To date, this request has not been addressed.

Recently, just weeks before the scheduled hearing date, by letter dated 21 November 2024, the Respondent’s solicitors wrote to the Complainant’s solicitors alleging that she had acted in breach of her contract of employment by sharing confidential information with a competitor company.

Since these recent allegations were levelled against the Complainant, the Respondent has provided no details in relation to the confidential information alleged to have been used by the Complainant, the identity of the customers she is alleged to have approached, when these events are alleged to have occurred and the outcome of any investigations claimed to have taken place by the Respondent.

The  Complainant rejects this accusation as wholly false and withoutmerit.

Discrimination claim

The complainant submits that she has made out such a case of discrimination on the facts provided. Section 85A (1), EEA provides:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

In Southern Health Board v Mitchell DEE011 (2001) E. L. R. 201, the Labour Court held that:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicated that a claimant must prove, on the balance of probabilities, the primary facts on which they rely on seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment’.”

This requirement to establish a prima facie case of discrimination was further elaborated in the decision of Melbury Developments v Arturs Valpeters EDA0917. In that case, the Labour Court outlined that:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

In establishing a prima facie case, the complainant must demonstrate the following elements as summarised in the decision of Minaguchi v Wineport Lakeshore Restaurant DEC-E2002-020: “(i) that [the Complainant] is covered by the relevant discriminatory ground(s) that [the Complainant] has been subjected to specific treatment and that this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.”

The facts provided in this submission clearly raise an inference of discrimination on the grounds of age and/or gender. Leaving aside the fact that the Complainant in this case had passed the stated retirement age in her contract of employment by some two years, it is clear that in dismissing her, the Respondent was purporting to rely on this provision. Mandatory retirement provisions are highly contentious and invariably invoke age discrimination protections under employment quality law.

The Employment Equality Acts prohibits discrimination on the grounds of age. Section 34(4) of the Acts state that it shall not constitute discrimination on the grounds of age for the retirement of employees if it is objectively and reasonably justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.

The respondent has made no effort to address these statutory imperatives in support of its decision to dismiss the Complainant. In the premises, the Respondent is prevented from relying on section 34(4). The Supreme Court has recently provided clarity in relation to assessing the legality of mandatory retirement ages.  See Seamus Mallon v Minister for Justice & Ors [2024] IESC 20

Female employees tend to occupy part-time roles to a significantly higher degree than their male counterparts. In addition to age discrimination, the narrative set out above gives rise to an inference of gender discrimination.

The material facts to establish a prima facie case of discrimination have not yet been disputed by the Respondent and that, subject to the position adopted by the Respondent at hearing, the Complainant has established the relevant facts. Accordingly, the burden of proof shifts to the Respondent.

Victimisation claim

Victimisation is defined in broad terms under the Employment Equality Acts, section 74(2) provides:

(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a)  a complaint of discrimination made by the employee to the employer,

(b)  any proceedings by a complainant,

(c)  an employee having represented or otherwise supported a complainant,

(d)  the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e)  an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f)   an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g)  an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

Section 74(2) of the Employment Equality Acts sets out the acts which are protected from adverse treatment on the part of the employer, and the actions which an employee must have taken/indicated an intention to take, from which the reactionary behaviour of the employer emerged.

The key elements of victimisation provided for therefore are as follows:

h.     The employee had taken action of a type referred to at s.74(2) of the Acts (a protected act),

i.       The employee was subjected to adverse treatment by the respondent, and

j.       The adverse treatment was in reaction to the protected action having been taken by the employee.

Once these proofs are met, there is no defence within the legislation (See A Female Teacher v A Board of Management of a Secondary School DEC-E2012-103).

The Complainant has established the necessary nexus between her efforts to assert her equality rights and the detriment to which she has been subjected as a result of same. The facts show that from the moment Mr Tomlinson first informed the Complainant that she no longer aligned with the company’s future plans and requested her retirement, she resisted the obvious discrimination that arose. She resisted the Respondent’s efforts to retire her on age grounds stating that she was not prepared to do so and that she did not wish to revert to full-time employment. Indeed, on 21 February 2024, before she was sent a dismissal letter from the Respondent by courier, the Complainant made explicit representations to Mr Tomlinson that the proposed termination of her employment on retirement grounds was discriminatory.

Further, in order to meet the burden of proof required by s.85A of the Acts, the Complainant has demonstrated that there is a causal connection between her making representations about the unfairness of her position to the Respondent and the adverse treatment to which she has been subjected. As victimisation is defined as discrimination for the purposes of the burden of proof required by the Employment Equality Acts, the general rules concerning burden of proof apply to victimisation. The relevant case law shows that a wide variety of actions have been found to be victimisation.

In Panuta v Watters Garden World Ltd [2020] E.L.R. 86, the Labour Court rejected the proposition that victimisation could only arise where a person suffered a detriment in respect of his or her conditions of employment. The court was satisfied that the decision of the Court of Justice in Coote v Granada Hospitality Ltd [1998] E.C.R. I-5199; [1998] I.R.L.R. 656 was authority for the proposition that the concept of “victimisation” should be “construed as widely and liberally as can fairly be done and should be given a sufficiently wide ambit so as to encompass all forms of detriment inflicted on a worker by his or her employer for having committed a protected act”.

Part-time worker claim.

Section 9 if the Protection of Employees (Part-Time Work) Act 2001 provides:

(1)  Subject to subsections (2) and (4) and section 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.

(2)  Without prejudice to section 11(2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

(3)  Nothing in subsection (2) shall be construed as affecting the application of a relevant enactment, by virtue of section 8, to a part-time employee.

(4)  Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a part-time employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable full-time employee. For the avoidance of doubt, the reference in this section to a comparable full-time employee is a reference to such an employee either of the opposite sex to the part- time employee concerned or of the same sex as him or her.

Prior to her dismissal, the Respondent’s Mr Tomlinson informed the Complainant that her part-time status “did not align with the company’s future plans.” She was told that if she did not revert to a full-time role she would be dismissed on the basis of her age and the related retirement provision in her contract. This treatment would not have arisen in the context of a comparable full-time employee.

The material facts to establish less favourable treatment have not yet been disputed by the Respondent and that, subject to the position adopted by the Respondent at hearing, the Complainant has established the relevant facts.

As above in the context of mandatory retirement ages, the Respondent had made no effort to justify on objective grounds the less favourable treatment to which the Complainant. In the premises, the Respondent is prevented from relying on section 9(2) of the 2001 Act.

Payment of Wages claim

The respondent failed to pay her commission due arising from the renewal of a number of contracts with identified third party clients

Under her commission arrangements, she was entitled to a fixed percentage for each deal completed and commission at 2 per cent of the value of the deal where they were renewed.

In relation to new business with the same customer, the complainant was entitled to 5 per cent of the value of the deal. At the end of the year if the Complainant overachieved her targets she was entitled to an additional payment.

In May 2024, the Complainant’s final commission payment amounted to €2,834.00. This is considerably below that to which the Complainant is entitled under her contract. By way of comparison, in 2021 the Complainant was awarded €27,740 in commission, in 2022 €106,300 and in 2023 €68,000.

The complainant is entitled to payments in respect of a number of renewed deals, but the Respondent has deliberately withheld the necessary information to substantiate this claim.

Evidence of complainant

The complainant Ms Helen Holland gave evidence on affirmation.

She confirmed details in the submission in respect of her commencement with the company and her role. Her customers were mainly outside Germany in northern Europe. She recalls that her contract of employment was prepared by the then Managing Director and that she herself had no input into it.

She accepted that a retirement age of sixty-five had been in the contract but was never discussed with her. In respect of the location of jurisdiction, and the making of her complaint in the Republic of Ireland she stated that she understood that the law of both jurisdictions applied but Irish law was more relevant, and she was never told by the respondent that she could not do so.

She confirmed that there had never been any performance issues in relation to her work, that she was well respected and performing well.

She was not paid a bonus but there was a separate Commission plan which made-up a large part of our remuneration. It could exceed her base salary by a significant amount and could be up to €100,000.

She went from full to part time work in June or July 2023 to a three day week, Tuesday to Thursday but on the basis that she would remain within the commission scheme but on a lower basic salary of €44,400.

That had been preceded by an e-mail on November 10th, 2022, to HR in which she referred to a conversation that same day with the Managing Director, Marco Borza.

In this email she describes the call as being about ‘my work situation and my impending retirement plans’.

It continued; ‘we agreed that I would continue to work full time for Advantio until the end of March 2023. After that I would work part time for approximately 6 months. However, we can discuss the details of the part time work in February or March of next year if that works for you’.

She stated in her evidence that on reaching sixty-five she did not want to retire therefore the agreement referred to in April 2022 was made so that she could continue working.  Mr Borza said that the agreement would be reviewed from time to time.

She referred to a follow up letter from Mr Borza on March 3rd, 2023, in which he stated that (in view of imminent changes in the company) ‘it was too much of a risk to let Helen retire according to the plan’.

She said that this was an agreement that she would continue working with no date being set for her retirement.

On January 9th, 2024, she was invited to meet Matt Tomlinson at Heathrow airport. He had become Sales Director in November 2023. He wanted to know her plans but indicated that he wanted her to return to full time work on the basis that the company had no room for a part time employee. He said that he wanted every salesperson to have the same terms of employment.

The complainant says that she told him she could not do that, and the possibility of alternatives were discussed but she said she could not think of a suitable full-time role.

He did ask her when she thought she was going to retire and this had the effect of making her feel old, irrelevant and unimportant and that the company was moving the goal posts from what had been previously agreed. It made her feel like a nuisance and that he was trying to get rid of her. The meeting concluded on the basis that she said she would think about the situation.

This was followed by a meeting on January 23rd in the course of which Mr Tomlinson told the complainant that he was going to invoke the retirement clause. He said that she did not fit the template. The complainant proceeded to give evidence of the impact of this on her health and that it required medical intervention. She was very worried about how she would cope financially with having to retire.

Then on February 21st, she had a one to one meeting with Mr. Tomlinson, and he asked her if she had changed her mind about reverting to full time work. She said she had not, and he told her he was terminating her employment

When she asked for a reason, he said he was not allowed to give one. The complainant said she felt it was ageism. Thirty minutes after the call a letter arrived confirming her date of termination as being April 30th.  This letter was dated on February 19th. This means the letter had been drafted some days before her meeting and contained the first reference to German law.

She said she was devastated to receive it and concerned about her reputation. She was told to be available for queries.

Regarding the Payment of Wages complaint, the Commission Agreement document was referred to. The complainant said that the CRM software provides details of all sales and in due course a payment is made reference was made to paragraph F of the agreement where it states that the agreement would terminate on resignation by the employee only.

If Commission is unpaid then exclusive jurisdiction on this point lies in the courts of Ireland. The complainant says she does not know how much it's due because she has been denied access to the CRM records. She estimates it could be between €18,000 and €22,000.

In cross examination it was put to her that the last payment had been made in April and that in line with the agreement payment only arises when the respondent is paid, and this was accepted by the witness. Counsel also put to the witness various payments made after termination of the employment.

In response to further questions, she said that the new situation regarding the retirement clause in the contract was that it was to be reviewed periodically.

Counsel referred to the email of November 10th, 2022, noting that there was no reference to retirement at 65 but the complainant responded that she was already over 65 at that stage.

The complainant also agreed that her meetings with Mr Tomlinson from November 2023 could be said to be part of the ongoing review of her position and she confirmed that she expected to continue working for a long time, although she agreed that there were no other part-time workers in sales.

Counsel also queried the complainant’s current employment position.

Evidence of Mariateresa Borza on affirmation.

The witness confirmed that she had not been involved in the drafting of the complainant’s contract of employment.

Regarding the phased reduction of the complainant’s hours, she had had a discussion with Mario Borza about his discussions with the complainant. She said that it was his plan that the complainant would be allowed to wind down slowly but no end date to this process had been set.

She said that she had been involved with others in the decision to permit the complainant to go part-time and also the decision to extend her employment beyond normal retirement age. The witness left the company in August 2024.

She said that when asked her response was that there was no basis to enforce a retirement age as the company had no case against the complainant.

Ashe also confirmed that she had no involvement in the termination of the complainant’s employment although she did have to deal with some queries as to her departure such as had she been dismissed for cause and also a query from a customer as to why she had left the company.

She stated that she had been involved in some meetings with the complainant in late 2023 and early 2024.

Burden of Proof

The entire burden of proof lies on the complainant, except that the burden of proof in the discrimination complaints can shift on to the respondent pursuant to section 85A of the Employment Equality Act 1998 (as amended), this is only after “facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her”.

There are no uncontested circumstances which could amount to facts sufficient to shift the burden of disproving discrimination to the Respondent, and it remains for the complainant to establish such facts.

In the case of Melbury Developments v. Arturs Valpeters EDA0917, the Labour Court stated that in order to shift the burden of proof a complainant needs more than “speculation or assertions”.

In the case of Minaguchi v. Wineport Lakeshore Restaurant DEC-E2002-020, the Equality Tribunal stated that a complainant needs to show that their treatment is “is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated”. The complainant has not identified any such comparator in order to shift the burden to the Respondent.

It is therefore submitted that (if, after hearing the Respondent’s preliminary jurisdictional objection, the WRC decides to hear the substantive complaints) the complainant should be required to present her case first.

Substantive complaints

Alleged non-payment or underpayment of commission

The s entitlement to commission arises from her “Sales Commission Plan”, signed by the parties in 2022. While it was expressed to be for the period from January 1st, 2022, to December 31st, 2022, it continued into 2023 by mutual agreement. The respondent updated the commission structure with effect from July 1st, 2023, by implementing new commission percentages as set out in the “Sales Commission Plan”

In June or July 2023, Giles Newman, Chief Commercial Officer of Advantio and the complainant’s manager at that time, advised of the updated commission structure to take effect for the second half of 2023 and provided the new commission plan to the complainant saying that it would take effect for the second half of 2023.

The final commission payment to the Complainant was calculated to be €2,834.00 in accordance with the Sales Commission Plan and the new commission percentages.  This commission was paid to the Complainant, along with the other remuneration due, on April 26th  2024. The German pay slip recording the details of that payment are submitted in evidence.

As she has not stated the amount of commission claimed, the respondent cannot comment on her calculation. The figures from previous years are not relevant to the calculation, as the nature of her work meant that the payment fluctuated, and the figures cited are not useful comparators.

She alleges in the Complaint Form that the Respondent advised her “that she will not be receiving her full commission to which she is entitled, particularly in relation to the renewal of certain contracts”. This is denied; she has been paid the full commission to which she is entitled and never advised her that she would not be receiving the full commission to which she is entitled.

On March 6th, 2024, the complainant raised certain queries with the respondent, and on March 2024 Michael Brennan, Finance Director of the Integrity360 Group, stated that she should “refrain from any outbound communication to” her former clients.

He also informed her that the total commission due as of March 11th, 2024, was €2,749.41 but that if there were further payments received from clients before April 30th, 2024, such payments would be included in the commission due to her in her final payment. He also stated that the “[named client] renewal is not yet due to invoice and therefore is not payable under the [commission] plan.”

Mr Brennan also informed the Complainant she would be paid commission for any projects that she fully closed up by 11 February 2024 and were invoiced and paid by the client by April 30th,  2024.

On March 22nd, 2024, the Complainant told Mr Brennan that she could not accept the figure for the commission as she needed “the details to be able to verify” the correct amount.

There is therefore one “opportunity”, [client named in evidence], opened by the complainant not included in the calculation of her commission, and which closed on January 23rd, 2024, i.e. before the end of her employment. However, that client did not pay the Respondent until June 4th, 2024, i.e. after the end of her employment and of the Sales Commission Plan agreement, and she was therefore not entitled to any commission on this opportunity, pursuant to clause 3.b. of the Sales Commission Plan, which she was aware of and which states:

“Commissions are payable to the Employee after the date the Advantio Group Member receives payment under a sales invoice related to the Customer contract. This date is referred to as “First Revenue Date” on Salesforce reports.”

Discrimination Complaint and Part-Time Work Complaint, and termination of complainant’s employment

The Respondent does not have any standard retirement age, and it is not provided for in their standard form of employment contract. The complainant had a retirement clause in her employment contract which the Respondent understands it was included at her request.

Clause 5.5 of the Complainant’s Contract of Employment states:

“Retirement Age – The retirement age is the date of your sixty fifth birthday. This date may be extended with the approval of the Board of Directors.”

The extension of the Complainant’s employment beyond the retirement date of 16th, April 2022

in her contract was not “indefinite” as alleged by the Complainant. It was temporary, subject to

review, and subject to the needs of the Respondent and to mutually agreeable arrangements

between the Complainant and the Respondent for meeting those needs.

The complainant continued to work past April 16th, 2022.

On November 10th,  2022 she referred to her “impending retirement plans” and noted that she had agreed with Marco Borza, former CEO, that she would “continue to work full time for Advantio until the end of March 2023”, that after that she “would work part time for approximately six months”, and that she could discuss the details of that part time work in February or March of 2023.

In February or March 2023, Mr Borza decided to allow the complainant to temporarily continue to work past March 2023. She agreed with Mr Borza and welcomed a slight change in her retirement plan. Mr Borza therefore agreed with her that she would work full time until June 30th, 2023, when she would move to part time, and that she would thereafter retire at the end of 2023. This arrangement is recorded in an email from Mr Borza to Mr Brennan and others on March 3rd, 2023

In November 2023 Matt Tomlinson, Sales Director of the Integrity360 Group, became the complainant’s manager following the departure of Giles Newman).

On November 23rd, 2023, he had a remote meeting with her to understand her role and day-to-day activity. She explained that her duties revolved around managing existing clients mainly in Germany and central Europe, ensuring that they renew their contracts.

On January 9th, 2024, Mr Tomlinson had an in person meeting with her to discuss her role in the larger Integrity360 group (following the acquisition of the Respondent by Integrity360 Limited in or around July 2023). He offered her the opportunity of building and running a German sales team and driving the Integrity360 group into Germany, Austria, and Switzerland. At that meeting, she appeared initially open to the suggestion. Mr Tomlinson explained to her that it would involve her working full time and explained to her that there was no part- time workers in the sales group.

At that meeting, the complainant brought up her age and possible desire to retire and do less, not more, work. Mr Tomlinson asked her to consider the role he had proposed.

On January 23rd, 2024, Mr Tomlinson had a remote meeting with the complainant, and she told him that she just wanted to keep doing the job she was doing. He told her that this did not meet the company’s needs, and asked her to reconsider, or at least taking a fulltime sales role in the region, or alternatively to retire as she had previously indicated she would like to do.

On February 21st, 2024, Mr Tomlinson had a remote meeting with her at which she told him she had not changed her position. He told her that her employment was being terminated without cause (pursuant to German law) and that she would not be required to work her notice period (to April 30th). That same day, the letter dated February 19th, 2024, was delivered to her address in Germany.

It is denied that the complainant was discriminated against on age grounds or that she was treated less favourably than a comparable full-time employee, or any such treatment was objectively justified in the circumstance of this case. In this regard the Respondent may rely on section 6(3)(c) of the Employment Equality Act 1998 (as amended).

Compensation

Section 16 of the Protection of Employees (Part-Time Work) Act 2001 was set out

The following matters are relevant regarding what compensation, if any, would be appropriate in the circumstances. The complainantcommenced employment for her new employer,Foregenix Limited, in July2024,i.e.withinthreemonthsoftheendofheremploymentbytheRespondent.

On November 25th, and December 10th, 2024, the Respondent sought particulars of her loss. On December 16th, her solicitors stated that this would be done at the hearing.

The complainant has knowledge of highly commercially sensitive information obtained in her employment and which she has used to facilitate her new employer, a competitor of the respondent, in undercutting the prices tendered by it for certain contracts. The Respondent’s solicitors in Ireland and Germany have written to the Complainant in this regard.

Evidence of respondent

Matt Tomlinson, Group Sales Director gave evidence on affirmation on behalf of the respondent.

The witness stated that he had been a director of Integrity 360 limited and in 2023 Advantio had taken over. He thinks he may have met the complainant on introductory calls but did not meet her in person until late 2023.

He stated that he reported to the company chairman and when the sales director left the company in November 2023 leaving sales’ staff without a manager he stepped into that role.

The meeting on November 23rd, 2023, was a fact finding session. As the complainant reported to the witness, he wanted to establish one to one contact and get feeling about her work. She told him she was an account manager and said that her primary role was in minding established accounts with the company.

He says she told him that she had a part time contract. After that there was some continuing engagement, but they met again on January 9th, 2024, face to face at Heathrow airport. Her terms of employment were discussed, and he set out what he wanted to achieve in the year ahead.

In particular he wanted to expand the German region and proposed that the complainant should lead it. He gave very positive feedback and effectively offered her a promotion to grow the region. He told her how much he believed in her but that he did not want a part-time role in sales.

He explained that this was not something that existed in the company and that the other one hundred and fifty employees are all full-time. It is not possible to build relationships with clients or to get the sort of instant reaction that is necessary.

He denied that he said that she did not fit the profile of sales as there is no profile of a salesperson. He agreed that retirement had been mentioned, and he set out a strategy for growth with the complainant at the head of it. She said she wanted to wind down on her terms.

The witness said he did not know the complainant’s age and stated that it was irrelevant; he did not ask as it had no relevance to him, and he referred to other senior employees who were around sixty years of age.

He stated that the only criterion was the ability to do the job. The witness said he did not know anything about the complainant’s retirement process and had not read her contract of employment on file; he was surprised to see a retirement clause for age sixty-five.

At this stage the respondent introduced a note of a meeting with Giles Newman which took place in August 2023 before the handover and which contained a review of eight individuals, the amounts of revenue generated etc.

There was a reference to the complainant being on a three day week contract and the phrase ‘review periodically, company’s discretion, wants to wind down’ appeared on the note of the meeting. He noted that it was unusual to have a reduced hours contract but that these were solely at the company's discretion which meant the company could change at any time it wanted.

He assumed that her reduced hours were connected to the desire to wind down.

At the meeting on January 23rd, 2024, he did not say there was no alternative to retirement.

He did say there was no option to continue as part time and said the alternative was to retire. He also denied that he referred to her not fitting the template as he does not use that word.  Nothing was decided at that meeting, but the options were that she would run the new programme, revert to full time in sales or retire. How the retirement option would work out was to be discussed.

At the next meeting on February 21st the complainant would not decide on any of the three options discussed previously.

The witness said that having anticipated this and having taken advice, he decided to terminate the complainant’s employment ‘without fault’. In response to a question from Counsel as to whether age was a factor he said absolutely not and said that reference to this was distasteful, and this also applied to any consideration of her gender. He said he only cared about results.

He does accept that the complainant said at that meeting that the proposed action was discriminatory.

The witness was cross examined.

He confirmed that the Newman meeting in August 2023 predated Mr Newman’s decision to leave. The witness confirmed that he was aware of the complainant’s move to a part time role from the Newman meeting but understood that this was to be at the discretion of the respondent.

In response to a question from the complainant’s Counsel, he said that he did not see any difficulty from the point of view of equality legislation in only having full time employees. He recalled the complainant suggesting job sharing, and while he does not recall rejecting it, he accepted that it is possible that he did.

He also accepted that he had been told of the complainant’s age and was conscious of this when meeting her (although Counsel pointed out that he had given evidence earlier that he did not know her age).

In respect of the Newman meeting, he was asked why, if age was not a relevant factor, he had made a note of the complainant’s desire to wind down and retire in his note of that meeting and he accepted that he had been aware of it from that meeting.

Counsel put to the witness that this rendered implausible his reason for offering her an extended role if he knew she was planning to wind down and retire. The witness did not comment.

In relation to Ms Borza’s evidence accepted that he asked her to clarify the meaning of a clause in the complainant’s contract but denied that he was told by her that changing the complainant‘s status required mutual agreement.

He also confirmed telling her that permitting the complainant to continue working as she had been was not an option and failure to change would result in termination.

He denied that he said that he was not allowed to tell the complainant the reasons for her termination but rather that he was not obliged to give her a reason.

Michael Brennan gave evidence on affirmation. The witness has been the respondent‘s Finance Director since September 2021.

(This evidence mainly relates to the Payment of Wages complaint).

The witness said that his role includes the calculation of commission, and he provided some detail as to how this is done.

He also spoke to the procedure for calculation how to calculate the bonus of a departing employee and a document was submitted by way of ‘Commentary on the complainant ‘s commission’.

In cross examination it was put to the witness that there was nothing in the contract of employment saying the commission scheme would terminate on conclusion of the employment, but the witness said he had not seen her contract, and this was determined by the sales plan.

It says that as long as a person is in employment they are entitled to commission. But even it has been earned it is not paid if they leave.

There are four complaints, two having been withdrawn.

Those remaining are CA-00063261-002 and CA-00063261-007 under the Employment Equality Acts, CA-00063261-006, under the Protection of Employees (Part-Time Work) Act 2001 and CA-00063261- 003, under the Payment of Wages Act 1991.

There is also a preliminary issue to be addressed first.

Preliminary issue

A preliminary issue arises as to whether the complaint lies within the jurisdiction of the WRC.

The respondent submits that thecomplainantlivedandworkedinGermany and her work involved business to business sales to clients and potential clients mainly based in mainland Europe and the UK, and that this main locationofheremployment neverchangedfromGermany.

She was paid wages into her German bank account and her pay was processed and subject to applicable tax and social security deductions in accordance with the relevant German payroll, tax, and other legal requirements.  She took annual leave on German public holidays.

The Rome I Regulation, which is directly effective and binding in Ireland, provides that a choice of law by the parties is effective only if it is “made expressly or clearly demonstrated by the terms of the contract or the circumstances of the case”.

The complainant rejects the preliminary jurisdictional objection as being ‘without merit and misconceived’. The facts regarding her location are not disputed but she says that pursuant to her contract of employment, she is entitled to bring her complaints in this jurisdiction before the WRC.

Clause 18 of the parties’ Contract of Employment dated June 2017 provides:

Governing Law

In addition to Irish legislation, this contract of employment is governed by the law of Germany

The Contract of Employment also provides, in Schedule 1, that:

“This Agreement shall be governed by and construed in accordance with the laws of Ireland/Germany and the Courts of Ireland/Germany shall have sole jurisdiction in any proceedings between the parties hereto.

As this Agreement will be governed by both Irish and German legislation, there may be some legislative conflicts, however we will endeavour to abide by the relevant jurisdiction as so far as possible, in line with what the business see’s [sic] most appropriate.”

While there was much detailed argument beyond this (set out above) the wording of the contract taken at face value permits the complainant to opt for either jurisdiction and she has chosen Ireland.

Indeed, given the order of wording in the extract above from the contract of employment, there is an implication that Ireland is the primary jurisdiction.

Accordingly, I decide that I have jurisdiction to hear and decide on the complaints.

Substantive Complaints

While the narrative of events may be gleaned from the submissions and evidence above, it is helpful to summarise the time line of events.

The complainant had been employed since 2017, and her performance was very satisfactory, it seems.

She was due to reach her sixty-fifth birthday in April 2022 and it is not in dispute that there had been a reference to a retirement age in her contract of employment.

However, this was not activated, by agreement and evidence was given of email correspondence on November 10th, 2022, from the complainant to the HR department of a discussion with the then MD, Mr Borza as follows.

In the email she describes the call as being about ‘my work situation and my impending retirement plans’.

It continued.

‘we agreed that I would continue to work full time for Advantio until the end of March 2023. After that I would work part time for approximately 6 months. However, we can discuss the details of the part time work in February or March of next year if that works for you’.

The respondent has drawn attention to the phrase ‘if that works for you’ which I address below.

This was followed by a further email in March 2023, some four months later.

In this letter from Mr Borza on March 3rd, 2023, he stated that (in view of imminent changes in the company) ‘it was too much of a risk to let Helen retire according to the plan’.  Ms Holland says that this was an agreement that she would continue working with no date being set for her retirement. On the face of it, it can have no other meaning.

Taken together, and with the fact that this is exactly what happened they add up to a clear conclusion that the complainant’s retirement age, due to take effect in April 2022 had been set aside by mutual agreement, and without any new date being actually fixed. The agreement to do so was entered into after she had passed the retirement age, lending it greater force.

The respondent has challenged the basis on which this was done, and what meaning should be ascribed to it thereafter, and has argued that the discretionary element to the agreement could likewise be set aside by the respondent at its sole discretion.

Then, to complete the picture in this first phase of the narrative, the change to the contract of employment discussed between the parties was effected in July 2023.

Written evidence was submitted of a document (undated) sent to the complainant confirming that her employment status would be ‘’modified from full time to part time starting from July 1st, 2023.

While the respondent has submitted that the absence of any reference to retirement age in this means the original provision remained intact this is not logical.

For a start the complainant was by this stage a year beyond that retirement age. Secondly, the entire context of the change was one in which the complainant was negotiating a phased wind down of her work with a view to retirement and was being facilitated in doing so by the respondent. It suited both parties.

Admittedly, there had been tentative references to her perhaps concluding by the end of 2023 (in Mr Borza’s email of March 3rd, 2023) but none of this had been considered of sufficient importance to be included in the letter of July 7th, which omission, given its relative formality and status as a variation of the complainant’s contract must be regarded as very significant.

There is no evidence that Mr Borza was focussed on terminating the complainant’s employment at any time in the immediate future, or at least not unilaterally. Indeed, the contrary is the case, as is indicated by his note of March 3rd, 2023, wherein he expressed his belief that ‘it was too much of a risk to let Helen retire according to the plan’.

This is, of course, very significant in that the trigger for the termination of the complainant’s employment was Mr Tomlinson purportedly ‘invoking the retirement clause’.

Apart from the issue of whether the respondent had the right to change all of this as it pleased, so far this is quite clear.

I find that the respondent consented to set aside the complainant’s retirement age, and the precise basis, if any on which her retirement might be effected at a future date was left only very loosely defined. The idea that a ‘retirement clause’ persisted is not borne out by this analysis.

Two other things are clear.

The first is that the context to this was that it was part of an extended retirement and exit strategy from work by the complainant on the basis of her being at, or around the age at which such things come into play. It was not a mid-career move to job-sharing or part-time working for personal or family reasons, for example.

And, while it did not have an exact end point, it was constructed to allow her to continue to work at a reduced level.

It is clear that some loose arrangement existed and that this would be reviewed from time to time, but the evidence and general context suggests that this was to be on some mutual and amicable basis. Again, this has relevance to Mr Tomlinson’s reliance on the existence of a ‘retirement clause’.

This assessment is at odds with the contents of the note Mr Tomlinson made at the meeting in 2023 or at least his recording (or interpretation) of it as being as being at the company’s discretion.

There was a reference in that note to the complainant being on a three day week contract and the phrase ‘review periodically, company’s discretion, wants to wind down’ appeared on the note of the meeting. (I consider the meaning of this in greater detail below).

He noted that it was unusual to have a reduced hours contract but that these were solely at the company's discretion which meant the company could change at any time it wanted.

That brings us to that second phase of the narrative which is also relatively straight forward and not in dispute in any material way.

Mr Tomlinson had a preliminary meeting with the complainant on November 13th, 2023 following his recent appointment as Sales Director which he described as a ‘getting to know you’ meeting.

The sequence of events that led directly to the termination of the employment begins with the next meeting, at Heathrow Airport on January 9th, 2024.

This was the meeting at which Mr Tomlinson set out his plans for development.  They discussed the complainant’s terms of employment, and he stated his desire that she would return to full time work on the basis of a promotion. She told him she could not do this.

He asked her about her plans and specifically when she was going to retire. The complainant said in her evidence that she thought he was trying to get rid of her. The possibility of alternatives was discussed.

They met again on January 23rd.

Having been told by the complainant that she could not comply with his plans Mr Tomlinson told her that he was going to ‘invoke the retirement clause’.

Then on February 21st, she had a ‘one to one’ meeting with Mr. Tomlinson, and he asked her if she had changed her mind about reverting to full time work. She said she had not, and he told her he was terminating her employment which was duly done by letter that same day, although prepared earlier. The complainant’s employment terminated on April 30th, 2024.

The respondent’s position turns entirely (having determined the preliminary issue) on the fact that it gave effect to the purported ‘retirement clause’ in the complainant’s contract, and that it was entitled to do so.

It has drawn attention to a number of things; the phrase ‘if that works for you’ in Mr Borza’s letter, the fact that Mr Tomlinson interpreted Mr Newman’s briefing that termination of the contract was at the company’s discretion, that there were numerous references to a review and that not all contractual issues are set out in a revision document.

None of these arguments is persuasive.

While it cannot be established with certainty whether the brief note of the July 2023 meeting reliably reflects the discussion between Mr Tomlinson and Mr Newman, what can be said with greater certainty is that it does not remotely reflect the full position that had been agreed between the complainant, and the respondent, Mr Borza specifically.

This is discernible from both the correspondence adduced in evidence and, most decisively, Mr Borza’s actions in agreeing to the reduced working week and acting on it.

The note of the meeting with Mr Newman emerged only very belatedly and somewhat mysteriously (after the first full day of hearing), it was never put to or discussed with the complainant during the second phase of the narrative when her discussions with Mr Tomlinson took place, other than as a fait accompli on January 23rd, 2024. The first anyone saw of this note was at the second day of the WRC hearings of the complaints.

Nor, as noted above, did this play any part in the position adopted by Mr Tomlinson in his discussions with the complainant. These were focussed on the proposed expansion of the complainant’s role and her return to full time work. Although  retirement was referred to, there was no discussion on the ‘retirement clause’ or its status.

While it is only a brief note, an equally, if not more plausible interpretation of it (read literally) is that the company’s discretion relates to the holding of the periodic reviews, not the invocation of the complainant‘s purported retirement clause.

It reads, in relation to the complainant, ‘3 day contract/review periodically/Companies discretion’.

Even allowing for a degree of ambiguity in the note, the respondent’s confident interpretation would contradict all of the evidence of the good will giving rise to the extension of the complainant’s tenure as best represented by Mr Borza’s unwillingness to ‘risk’ letting the complainant leave her employment a year after she was due to retire.

There was no evidence that Mr Borza had any intention of exercising an arbitrary discretion and  unilaterally imposing an enforced retirement on the complainant. The evidence is all to the contrary and whether Mr Tomlinson misunderstood or decided to ignore this position is what led to the complainant’s dismissal.

The respondent submitted (and the complainant accepted in her oral evidence) that the extension of her employment would not be indefinite, and while that may be true, the context in which that was agreed does not lend any support to the actions of the respondent in purportedly ending the employment in the unilateral manner it did.

In summation, the respondent stated that all that was done did in relation to the retirement clause was to ‘call it in’, as if it had been clear as to its meaning.

In fact, its actions were in breach of the essential mutuality which characterised the agreement between the parties. Indeed the following appears in the submission of the respondent above.

The extension of the Complainant’s employment beyond the retirement date of 16th, April 2022

in her contract was not “indefinite” as alleged by the Complainant. It was temporary, subject to

review, and subject to the needs of the Respondent and to mutually agreeable arrangements

between the Complainant and the Respondent for meeting those needs.

Note the reference to ‘mutually agreeable arrangements’ which I have underlined for emphasis.

Mr Tomlinson, knowing well that the complainant had already halved her hours some six months earlier, specifically as part of a retirement exit strategy, and approaching 67 years of age offered her the option of a ‘take it or leave it’ promotion involving her return to full time work, and considerably more travel and responsibility than before.

It is impossible to believe that this entirely disingenuous proposition, which flew in the face of the context and  the reality of the complainant’s position, and the essential mutuality referred to, was intended as a serious option.

It was, more probably, a gambit calculated to place the complainant in an impossible position, and Mr Tomlinson must have known that there was no basis on which it could be accepted. It was merely to give him some cover to terminate the complainant’s employment.

Mr Tomlinson advanced reasons for his resistance to the idea of part-time work. They were highly subjective and merely reflected his personal preferences. They go nowhere near justification for terminating the complainant’s employment on the basis of objective justification.

I find that the complainant‘s employment was not terminated on the basis of invoking a retirement clause; there was, by that time, no clear retirement clause. It had been substantially diluted and modified by the agreement and actions of the parties.

And indeed, apart from ubiquitous references to it by the respondent in the course of the submissions and hearing, the text or true meaning of this so called retirement clause was not discussed between the complainant and Mr Tomlinson during any of these meetings.

Mr Tomlinson appeared to believe that his interpretation of a rather flimsy record of an informal  briefing meeting some six months earlier provided him with the authority he needed to act.

Further, and rather astonishingly, there is no reference to a retirement clause at all in the letter of February 19th, 2024, from Patrick McHale terminating the complainant’s employment where it is described as ‘ordinary notice of termination of our employment relationship with you…..’.

There was a provision that her position would be reviewed from time to time and a clear intention on the part of the respondent before Mr Tomlinson’s arrival that this would be done in consultation with the complainant. In my view the note of the Newman meeting reinforces, rather than undermines this and the acknowledgement by the respondent of the mutuality of the arrangement leaves no room for doubt as to its nature.

These clearly represent facts from which it can be inferred that discrimination took place on the age ground. The complainant has argued on the basis of the objective number of women who are in part-time employment that it brings the gender ground into play also.

The respondent has failed to establish that it terminated the complainant’s employment on a non-discriminatory basis.

The circumstances giving rise to the complainant’s contract to work part time (and this also arises separately under complaint CA-63261-006) arose entirely on account of her age and her proximity to retirement on account of her age.

It is not possible to separate the decision to terminate her employment from this fact. On other facts it might be, say had she been in mid-career and opted for job sharing or some other arrangement for family reasons, as referred to already.

But those are not the facts in this case; on the contrary the facts of this case are centrally infused with considerations of age, and these facts connect directly to the reasons why the complainant was dismissed.

While the respondent, Mr Tomlinson asserted his indifference to age as a factor in general, the fact remains that he took no account of the broader considerations that applied in Ms Holland’s case and was quite prepared to ignore them.

There were two complaints under the Employment Equality Acts 1998: CA-00063261 -002 and 007. The respondent has submitted that these are overlapping complaints. The second is a complaint of victimisation.

The complainant says that the retaliation was represented by the various actions of the respondent after the complainant left her employment. I have difficulty discerning the type of retaliatory act necessary to ground the victimisation complaint and the complainant has not made out a good case on this point.

However, I find that the circumstances of the termination of employment represented discrimination on the age ground and the case is well-founded.

The Act provides, at Section 82(1) (c)  for ‘an order for compensation for the effects of acts of discrimination or victimisation which occurred’.

The complainant gave oral and submitted written evidence of the impact of the respondent’s actions on her health and in general. She spoke persuasively of having been ‘devastated’ and her concerns for how the respondent’s actions would impact on her reputation.

She stated that Mr Tomlinson’s questioning of her about when she was going to retire  ‘had the effect of making her feel old, irrelevant and unimportant and that the company was moving the goal posts from what had been previously agreed. It made her feel like a nuisance and that he was trying to get rid of her.’

I take this into account in making my award below.

There was insufficient evidence to support discrimination on the gender ground. My award is below.

The Payment of Wages Act complaint. CA-00063261-003

The complainant was paid commission, but the respondent stated that it has a policy of not paying employees commission, even when it has been fully earned and to which they are entitled if they resign from the company. This appears at Paragraph 2F of the Sales Commission Plan.

 She estimates the commission due as €22,000. In fact, she was paid €2,834.00 in May 2024. This compares with the Complainant was awarded €27,740 in 2021 €106,300 in 2022 and €68,000 in 2023.

In this case, of course the complainant did not resign but was dismissed and therefore that clause in the Sales Commission Plan is inapplicable.

A greater difficulty is the fact that the complainant cannot establish exactly what her entitlement is as she does not have access to the respondent’s internal systems for calculating it.

The respondent was invited to and did make a supplementary submission  a part of which was as follows.

Michael Brennan, the former CFO of the Respondent and now Finance Director of the Integrity360 Group, gave evidence at the hearing on 29th January 2025 that he performed the calculations of the Complainant’s commission payments, that he did so in accordance with the Sales Commission Plan at Appendix A-9, and that the calculation set out in Appendix A-12 of the Respondent’s submissions dated 16th December 2024 was performed in accordance with that document.

Mr Brennan described the calculation of commission and in particular the fact that the entitlement only arises on payment of an invoice as “black and white” rules and stated that he strictly applies the rules of the Sales Commission Plan to the calculation of commission for all employees.

Mr Brennan also stated that the payment of commission is deliberately triggered by the payment of the relevant invoice because sales personnel can often use their relationship with clients to ensure prompt payment and it is therefore appropriate to align the company’s interest in payment of invoices with the salesperson’s interest in commission in this regard.

The final commission payment to the Complainant was calculated to be €2,834 in accordance with that Sales Commission Plan and Mr Brennan in his evidence confirmed the accuracy of the calculation thereof which is set out in Appendix A-12. An unredacted version of this calculation was provided to the Complainant and referred to in Mr Brennan’s evidence and this is attached hereto. This commission was paid to the Complainant.

At hearing, the Respondent presented uncontroverted evidence (set out above) that the Complainant’s commission was calculated exactly in accordance with her Sales Commission Plan. In response, the Complainant (through her counsel) relied on a submission that the sum “properly payable” to her pursuant to the Payment of Wages Act 1991 was a greater, unspecified, sum. In effect, the Complainant’s claim under this heading changed from what was originally advanced (a claim for payment allegedly due under the terms of a contract) to a claim that the Respondent should depart from the terms of a contract and exercise some form of discretion to pay a greater sum to the Complainant.

However, the Complainant cannot seek to have the Respondent exercise a contractual discretion in any particular way, because there is no such discretion provided for anywhere in the Sales Commission Plan or elsewhere. Rather, the Complainant is effectively making an equitable or quantum meruit claim which does not come within the concept of “properly payable” or within the Payment of Wages Act 1991 at all.

The submission continues.

Mr Brennan gave evidence that he had investigated the Complainant’s claim to be entitled to commission payments in respect of five named clients and referred to a summary of the results of his investigations which is attached.

 Mr Brennan’s evidence was that, under the Sales Commission Plan, the Complainant was not entitled to commission payments in respect of [the named clients] because the relevant invoices were paid after the end of the Complainant’s employment. His evidence was that the Complainant was not entitled to commission payments in respect of [another named client] because there had been no contract renewal since the Complainant was last paid commission on this account in 2022. Finally, his evidence was that the Complainant’s commission in respect of [another named client] was included in the commission calculated and paid to her on the termination of her employment (and this is clear from the unredacted calculation at Appendix 1).

The Complainant has not provided any details or calculation of the amount of commission she alleges she should have been paid.’

It is important to note the difficulty the complainant had in doing so, and the respondent could have done been much more cooperative in that regard, I am placed in the same position for lack of evidence and in the circumstances the complainant has not discharged the burden of proof.

I can reach no conclusion on whether any payments are outstanding, and I reluctantly accept the evidence of Mr Brennan that no further payments arise.

Part Time Work Act; Complaint CA-00063261-006

While the precise language used at the various meetings may not be agreed, it is not in dispute on the basis of the evidence that the complainant’s part-time status was a significant problem for Mr Tomlinson.

As already noted, he advanced a number of reasons why he did not wish to have the complainant continuing her role unless it was on a full time basis.

Essentially, she was given an ultimatum and told that if she did not return to full time working (on the basis of two options, one of which was more unacceptable than the other) then she would have to retire.

As already noted, Mr Tomlinson’s reasons were highly subjective and lacked credibility. Mr Borza, for example, felt that losing the complainant even on the basis of a part-time commitment was a ‘risk’ he could not take. While different managers may disagree on their preferences in such matters, they remain that, simply preferences.

The complainant notes in her submission that this treatment would not have arisen in the context of a comparable full-time employee.

Neither in its written submissions nor in evidence has the respondent contested the facts concerning what happened in this regard. Indeed, the respondent witness confirmed an quite fundamental opposition to part-time working.

In summing up for the respondent it was submitted that the purpose of doing so was to achieve equality (with the other full-time workers) and that the company had the discretion to do so. Unfortunately, this eccentric aspiration to ‘equality’ runs into trouble when considered against the relevant legislation.

Section 9 if the Protection of Employees (Part-Time Work) Act 2001 provides:

(1)  Subject to subsections (2) and (4) and section 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.

(2)  Without prejudice to section 11(2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

(3)  Nothing in subsection (2) shall be construed as affecting the application of a relevant enactment, by virtue of section 8, to a part-time employee.

(4)  Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a part-time employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable full-time employee. For the avoidance of doubt, the reference in this section to a comparable full-time employee is a reference to such an employee either of the opposite sex to the part- time employee concerned or of the same sex as him or her.

The provisions of the above Act are clear.

It may be open to an employer not to agree to a full-time employee going on to a part-time contract but once they have done so and a person become employed on a part-time contract they are entitled to rely on its provisions.

It is abundantly clear (from Mr Tomlinson’s evidence) that the complainant’s part-time status was the decisive factor in his decision to terminate her employment. The options he gave her were to return to full time work (which I have already found was an unreasonable option on the facts of the case) or to retire.

When she did not do so willingly, he terminated her employment in breach of section 9(1). This complaint is well founded and in making my award I have regard to the very significant impact on the complainant of the breach of the Act.

Section 16 (2) (c) of the Act deals with the power of the Adjudicator to make awards under this Act and says s/he may

 ‘require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment’.

In the first place, this makes a statement about the seriousness with which the Oireachtas viewed breaches of this Act of a very serious nature, in providing for compensation of up to two years’ remuneration.

This is subject to the qualifying phrase ‘such amount as is just and equitable having regard to all the circumstances.’

Having regard to the circumstances in this case and in considering the spectrum of gravity involving possible breaches of this Act it is hard to conceive of any that would be more serious than those presenting in this case.

The respondent was open and blatant about the circumstances leading to his termination of the complainant’s part time contract, and also of her employment, those reasons were at best insubstantial and unconvincing and at worst deliberately calculated to bring about the outcome that resulted. In any event they were a flagrant breach of the Act.

Accordingly, I award her the maximum permitted by the statute, in this case €88,800.00 being just and equitable having regard to all the circumstances.

Complaints CA-00063261-005 and 008 were withdrawn at the hearing.

In respect of CA-00063261-002 and 007 pursuant to section 77 of the Employment Equality Act 1998 I uphold CA-00063261-002 and award the complainant €35,000.00 for the breach of her rights under the Acts.

Complaint CA-00063261-007 is not upheld.

Complaint CA-00063261-003 pursuant to section 6 of the Payment of Wages Act 1991 is not well founded.

CA-00063261-006  pursuant to  section 16 of the Protection of Employees (Part-Time Work) Act 2001 is well founded and I award the complainant  €88,800.00.

Equality, age discrimination, Part Time Work