ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00052641

Parties:

Complaint:

Date of Adjudication Hearing:  21/02/2025

Workplace Relations Commission Adjudication Officer:  Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

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

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

The issue of anonymisation in the published finding of the WRC was considered but not deemed necessary.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

Background:

(Supplementary Submissions called for / IT Investigation

Arising from the opening  hearing on the 21st February 2025 supplementary submissions were asked for in relation to two major opening legal Arguments. Extensive and detailed Legal submission were received by the Adjudication Officer and counter commentaries on the Submissions from both Parties exchanged.

1:        Initial Opening Legal Arguments.

 These were two-fold, Time Limits and Juridiction of the WRC to hear an Unfair Dismissals Act complaint for non-resident/non domiciled Complainant – Section 2(3) of the UD,1977 Act applies.

1:1        Time Limits –

Introduction and Arguments from the Parties.

The Respondent argued that the complaint was outside the six month time limit as specified in the Act (Section 41 (6)  of the Workplace Relations Act ,2015 as applicable to the Unfair Dismissals Act,1977)  and that no application had been made to have the reference period extended (Section 41 (8) of the Workplace Relations Act ,2015  as applicable to the Unfair Dismissals Act,1977).

There was a dispute regarding dates of exit - (Respondent referred to an e mail of Resignation dated the 4th December 2023 and the Complainat assertion that he had ended the relationship on the 15th December 2023).

The WRC dated the receipt of the Complaint form on the 28th June 2024 – 6 months and 13 days from the 15th December 2023 or 6 months and 24 days from the 4th December 2023.

The Complainant argued that he had electronically lodged the complaint with the WRC website on the 14th June 2024 -one day in time from the 15th December 2023.

The WRC did not electronically acknowledge safe receipt of the Complaint on the 14th June 2023. It was not until the Complainant telephoned the WRC to discoverer non receipt that he then submitted a paper complaint form acknowledged as received on the 28th June 2024.

He maintained that he had received an On-Screen message from the WRC on the 14th June 2024 acknowledging his communications. He had, in good faith accepted this as an acknowledgement of the lodging of a complaint.

1:1:2       Adjudication viewpoint.

Arising from the arguments made by the Complainant the Adjudication Officer contacted the relevant WRC Administration Officials responsible for the electronic complaint system.

The following message appears electronically when a Compliant is initially being lodged.

Following on this it appears that the Complainant may have, inadvertently, failed to follow up with the Info Line to formally lodge his Complaint with the WRC IT System.

On either contested possible end of employment date, the 4th or the 12th December 2023 the Complaint is “Out of Time” at the 28th June 2024.

The question is then for the Adjudicator to consider if an extension under Section 41(8) of the Workplace Relations Act,2025 is allowable. The Respondent, in his verbal evidence, was strongly opposed to this.

1:1:3       Adjudication View: Time Limit Grounds

Considering the considerable electronic ambiguity of the Lodging / non-Lodging the Adjudication View is that latitude be allowed to the Compliant on the time limit arguments. The claim is allowed to proceed.

1:2          Second Opening Legal Argument – jurisdiction of WRC Adjudication Officer to hear case.

Section (2) (3) of the Unfair Dismissals Act, 1977 for convenience quoted below was heavily relied upon by the Respondent to argue that the Complainant had never been either domiciled or ordinarily resident in the Republic of Ireland for the period of the contact.

(3) (a) This Act shall not apply in relation to the dismissal of an employee who, under the relevant contract of employment, ordinarily worked outside the State unless—

(i) he was ordinarily resident in the State during the term of the contract, or

(ii) he was domiciled in the State during the term of the contract, and the employer—

(I) in case the employer was an individual, was ordinarily resident in the State, during the term of the contract, or

(II) in case the employer was a body corporate or an unincorporated body of persons, had its principal place of business in the State during the term of the contract.

(b) In this subsection “term of the contract” means the whole of the period from the time of the commencement of work under the contract to the time of the relevant dismissal.

The Complainant argued via his Legal advisor, Mr O’Sullivan BL, that irrespective of the above the Brussels Recast Directive 1 (1215/2012/EU) together with the Rome Directive (EC N0 593 /2008 (Rome 1) provided a ground for a proper complaint to the WRC.

Mr Mullins for the Respondent argued that the Brussels Recast and Rome Directives could not apply as the Complainant was a UK resident, the UK had left the EU and reference to EU instruments were no longer applicable. The Transition period had ended on the 31st December 2020.

Nonetheless, Mr O’Sullivan BL for the Complainant, contended that, if Irish jurisdiction was conceded then EC N0 593 /2008 (Rome 1) applied in that, the then EAT and lately the WRC were the “mandatory” bodies to hear the Complaint. This was to address the question that while a strong EU Law case might be made that Irish Law had “Jurisdiction”, the effect of Section 2(3) excluding the WRC could be overruled. The counter argument by the Respondent being that “redress” in the RoI Ireland was perfectly possible, in keeping with the Directives, in the ordinary Courts even if the WRC was precluded by Section 2(3) of the 1977 Act.

 It was argued that, in the absence of amending legislation by the Houses of the Oireachtas, the only avenue of redress was the ordinary Courts.

Extensive Irish and EU Case law was referred to by both sides to sustain their arguments. Cases such as Zimmerman v Der Deutche Schuliverein Ltd ELR 212 and Krzystof v ASL airlines Adj 39682 were considered at length.  Considerable reference was made to Redmond on Dismissal Law, Pars Chapter 23 (104-123) Bloomsbury Professional 3rd Edition 2017 and Purdy on Termination of Employment, Bloomsbury 2023.

1:3       Overall Adjudication Conclusions on Opening Points.

Having considered carefully the most detailed supplementary submissions and the extensive case Law cited in support of respective arguments the Adjudication Officer view has to be as follows.

Regarding the second Opening argument -effectively the prohibition under UD Act,1977 - Section 2 (3) (a) the Adjudication Officer view is that the issue hinges on the proper jurisdiction point. Mr Ryan in Redmond at Para 23.108 of the 3rd Editon, 2017 states in a review of Regional Claims Manger v an Insurance Company -ADJ- 00000680

“In the Adjudication Officer’s view, the Recast Brussels 1 Regulation trumped the prohibition contained in S 2(3) of the Unfair Dismissal Act. However, as above the Recast Brussels 1 Regulation concerns jurisdiction only and does not provide which law is to apply in the forum.”

Accordingly, the Adjudication Officer view, in the case in hand, is that the European law cited, especially Recast Brussels 1, allows the case to be properly tabled in the RoI but does not specify which Law is to be applied in the Irish (RoI) jurisdiction.

Specifically, it does not overrule the prohibitions as to choice of law/legal vehicle set out in Section 2 of the Unfair Dismissals Act 1977.  Amending the Unfair Dismissals Act to remove the prohibitions on UD cases proper to the WRC is a matter for the Houses of the Oireachtas. This has not happened and the avenue of redress for the Complainant has to be, accordingly, the Ordinary Courts.

The complaint under the, as yet unamended, Unfair Dismissal Act ,1997 cannot proceed.

Furthermore, the Respondent Argument regarding the withdrawal of the UK from the EU has substance and adds considerable weight to a decision regarding the weak legal basis of the Complaint relying on EU law. The case of Compagnie v GTLK [2013] IEHC 324 and Gallagher v Minister for Foreign Affairs and Others [2021] IEHC 240 were cited by the Respondent to support their arguments that the UK was now outside the EU and EU Directives could no longer be relied upon in cases of this nature.

In summary therefore, having considered carefully the materials presented, the complaint has to be, regrettably for the Complainant, deemed legally Not Properly Founded if proceeded, as proposed, under the Unfair Dismissals Act,1977

It has to fail.

2:        Findings and Conclusions:

3:        Decision:

Section 41 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim in accordance with the relevant provisions of the cited Acts.

CA-00064524-001

The Unfair Dismissal Act,1977 complaint is deemed legally Not Properly Founded.

It has to be stated that it fails.

Dated:   12th May 2025.

Workplace Relations Commission Adjudication Officer:  Michael McEntee

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