Complainant

Respondent

Parties

Carina Halvorsen

Finch EMEA Limited

Representatives

Self-represented

McCann FitzGerald LLP

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 8 of the Unfair Dismissals Act 1977

CA-00072065-001

02/06/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994

CA-00072065-002

02/06/2025

The complainant referred a complaint of non-compliance with the 1994 Act, and a claim of unfair dismissal under the 1977 Act in respect of the termination of her employment on 2 May 2025 following a redundancy process.  The complainant sought compensation by way of redress. 

The respondent raised a preliminary objection regarding the application of the 1977 Act.  Without prejudice to the foregoing, it submits that the complainant was not unfairly dismissed; she was made redundant as part of an objective process arising from the respondent’s financial situation.

The respondent acknowledged a technical breach of section 3 of the 1994 Act but submits there was no prejudice or damage suffered by the complainant as a result and that in such circumstances no compensation is payable.

The complainant submits that the date of commencement of employment for the purpose of the within proceedings is 16 January 2024.  The complainant had worked for the respondent previously.  An offer letter that issued to the complainant in respect of the period of employment from 16 January 2024 did not constitute a contract of employment and did not meet the requirements of the 1994 Act, specifically it omitted to include:-

§  the employer’s address or principal place of business in the State;

§  the duration and conditions relating to a probationary period, if applicable;

§  the normal daily and weekly hours of work;

§  any terms and conditions relating to hours of work (including overtime);

§  terms or conditions relating to paid leave (other than paid sick leave);

§  any terms or conditions relating to incapacity for work due to sickness or injury;

§  any terms or conditions relating to pensions and pension schemes;

§  periods of notice or method for determining periods of notice.

The complainant claims she was unfairly dismissed on grounds of redundancy.  The complainant did not believe a genuine redundancy situation existed, submits that the selection process was unfair and that her place of residence outside of Ireland was a factor in the decision to terminate her employment and impacted on the consultation process.  At the time of hire in January 2024, it was fully disclosed and accepted that the complainant would be working remotely.  The complainant worked in several different countries with the respondent’s knowledge and approval and no issue was ever raised.  There was no opportunity afforded to the complainant to appeal the redundancy decision.  The complainant submits the redundancy consultation process lacked transparency and fairness, and that the respondent provided inconsistent justifications for the termination of the complainant’s employment.

The complainant is ordinarily resident in Ireland for tax purposes since 2021.  She has been living and paying taxes in Ireland since 2018.  The complainant outlined where she had lived from 2018, and specifically that she had lived in Ireland from September 2021 until the end of September 2023.  She has not resided in Ireland since the end of September 2023 when she availed of an opportunity to work remotely.  The complainant has ordinarily worked outside of the State since January 2024.

Summary of complainant’s oral evidence

The complainant received an offer letter when she commenced employment with the respondent from 16 January 2024. 

The complainant compared the offer letter in respect of this employment with that which she had received in respect of a previous period of employment with the respondent.

The complainant had access to the Employee Handbook but did not look at this until after her employment commenced.

Asked about loss or damage incurred because of any breach of the 1994 Act, the complainant stated that the redundancy process was negatively impacted because she had not been afforded 30 days’ notice of termination, which had been the notice period applicable in respect of the previous period of employment with the respondent.  The complainant acknowledged that she did not accept a severance package on termination of employment but maintained that non-receipt of a 30-day notice period impacted on protection for the complainant.

The respondent concedes a technical breach of the 1994 Act; a statement of terms was provided to the complainant in the form of the undated offer letter in respect of employment in the position of Display and Social Specialist commencing 16 January 2024.  The letter did not contain all the terms referred to under section 3 of the 1994 Act; there was no specific statement about the National Minimum Wage Act or of pension schemes or right to avail of a PRSA.  The offer letter combined with the Employee Handbook met the general purpose and requirements of the 1994 Act and compensation was not warranted for a technical breach. The respondent did not dispute the complainant’s submission in relation to the terms not specified in the offer letter.  Whilst there was no specific notice provision, the notice provided to the complainant on termination of employment met the statutory requirements under the Minimum Notice and Terms of Employment Act 1973.

The complainant was not ordinarily resident in the State during her employment and is not domiciled in Ireland.  The complainant’s role in employment with the respondent from 16 January 2024 until 2 May 2025 was fully remote.  The complainant worked for approximately 1 week in Ireland in 2024 and visited Ireland for 4 days in January 2025.  Accordingly, the 1977 Act does not apply to the termination of the complainant’s employment.

Without prejudice to its preliminary objection, the respondent disputes the claim of unfair dismissal.  The complainant’s employment terminated by reason of redundancy following a fair and proper consultation process.  The complainant was one of a number of employees made redundant due to the respondent’s financial situation. 

The respondent did not tender oral evidence.

Claim under section 8 of the Unfair Dismissals Acts 1977-2015

It was agreed that the term of the contract was from 16 January 2024 to 2 May 2025, and that the complainant worked for the respondent remotely from outside of the State and from several different countries during the contract term, save for a total period of approximately 10 days when she was in Ireland.  The complainant has not lived in Ireland since September 2023.

On the termination of the complainant’s employment with the respondent and during the term of the contract, the complainant was ordinary resident in Ireland for tax purposes.

The respondent submitted that the complainant ordinarily residing outside of Ireland during the term of the contract means that her unfair dismissal claim is not admitted under the 1977 Act.  It disputes an interpretation of “ordinarily resident” in section 2(3) of the 1977 Act as meaning ordinarily resident for tax purposes and submits that in the absence of any link between section 2(3) and tax legislation, the words should be given their plain and ordinary meaning.   

The complainant objected to the respondent’s submissions concerning section 2(3) of the 1977 Act.  The complainant had ordinary resident status in Ireland at the relevant time notwithstanding that she ordinarily worked outside of the State from January 2024.

Section 2(3) of the 1977 Act provides:-

“(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 respondent is a company with its registered office in Ireland.  During the term of the contract, the complainant’s working arrangements were such that she was resident outside of the State and carrying out her work with the respondent remotely.  The complainant is not maintaining Irish domicile, and there was no information before me to support Irish domicile during the term of the contract, rather the complainant submits that she was ordinarily resident in the State during the contract term. 

I was referred by the respondent to various cases and consider the following to be relevant. 

In Buckle v Lee Overlay Partners Ltd PW14/2005 the Employment Appeals Tribunal was asked to construe section 2(3) of the 1977 Act in a broad way to take account of modern work patterns.  However, the Tribunal excluded the appellant from the scope of the Acts on the basis that he was neither resident nor domiciled in the State noting:-

“The technological developments which have given us email, low-cost telephony and air transport were not considered by those drafting the legislation in 1977.”

More recently, the Labour Court in its determination in Infosys Ltd v Shaikh UD2224 stated that the meaning and intention of section 2(3)(a)(i) is clear:-

“If an employee is living and working in Ireland for the duration of a contract of employment, they are covered by the protections of the Act.”

The Court further accepted that the complainant’s payment of tax and PRSI in Ireland did not automatically confer jurisdiction.  It appears from the determination that a material consideration was where the complainant lived and worked during the contractual arrangements.

I cannot accept a submission that “ordinarily resident in the State” in section 2(3)(a)(i) of the Unfair 1977 Act is to be interpreted in line with the Taxes Consolidation Act 1997, as amended, (the “1997 Act”).  Section 819 and 820 of the 1997 Act contain specific rules for determining residence and ordinary residence “for the purposes of the Acts”, which Acts are defined in section 818 as the Tax Acts, the Capital Gains Tax Acts and the Capital Acquisitions Tax Acts.  Furthermore, the concepts of residency and ordinary residence under the 1997 Act relate to the year of assessment / tax year.  Without express provision and adaptation, it is not possible to simply apply provisions of the 1997 Act to interpret section 2(3)(a)(i) of the 1977 Act.  

In line with the decisions cited above, the words ‘ordinarily resident’ must be given their plain and ordinary meaning.

I have considered Article 30 of the EU Charter of Fundamental Rights which provides every worker with the right to protection against unjustified dismissal, “in accordance with Community law and national laws and practices”.  The application of Irish law to the complainant’s employment with the respondent was not in issue, however national law and practice do not admit the complainant’s claim for unfair dismissal as the complainant was not ordinarily resident in Ireland during the term of the contract. 

I therefore find that the 1977 Act does not apply to the termination of the complainant’s employment with the respondent.

Complaint under the Terms of Employment (Information) Act 1994

The complainant commenced employment in the position of Display and Social Specialist on 16 January 2024.  She worked a predictable work pattern, was not subject to a probationary period, and was employed on a permanent basis.  The complainant was aware of her hours of work from a previous period of employment with the respondent.

Section 3(1) and 3(1A) of the 1994 Act require an employer to provide an employee with a statement in writing of certain particulars of the terms of the employee’s employment within specified timeframes.  The Terms of Employment (Additional Information) Order 1998 (SI 49/1998) requires a written statement containing particulars of the times and duration of rest periods and breaks that are being allowed under sections 11, 12 and 13 of the Organisation of Working Time Act 1997 and of any other terms and conditions relating to those periods and breaks.

The respondent did not dispute the complainant’s submission that the offer letter issued by the respondent in respect of the complainant’s employment from January 2024 lacked certain required terms.  It urged a holistic approach to the complaint of non-compliance with the 1994 Act and that regard should be had to the offer letter, the Employee Handbook and the Proprietary Information and Inventions Agreement.

On my review of the offer letter, the Employee Handbook and Agreement, they contain no reference to the right to request the statement under the National Minimum Wage Act; no information in relation to notice periods, normal daily/weekly working hours, rest periods and breaks, no jurisdiction specific information on paid leave, including annual leave; the respondent’s address in the State or registered office was not provided and there was no information concerning pensions and pension schemes or a personal retirement savings account.

It follows that the respondent did not provide the complainant with a statement that complies with the 1994 Act.

Section 6(2) of the 1994 Act provides in relevant part as follows:-

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G shall do one or more of the following namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either—

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under [section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G], or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) in relation to a complaint of a contravention under section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G and without prejudice to any order made under paragraph (e) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks' remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

…”

Based on the information set out above, I find that the complaint of a contravention of section 3 of the 1994 Act is well founded.

Having taken account of the objectives of the underlying Directives 91/533/EEC and 2019/1152/EU, the complainant’s request for compensation and the respondent’s submissions in this regard, I consider there to be substantive merit to the complainant’s complaint and do not accept a deviation from the requirements of section 3 so technical or trivial that it can be overlooked.  The complainant was not provided with information in relation to essential aspects of her employment with the respondent.  In her complaint to the WRC, the complainant took issue with the notice she received in respect of the termination of her employment.  The notice provided complied with the Minimum Notice & Terms of Employment Act 1973; however, the complainant had not been informed in January 2024 of the notice period she would receive in a termination situation.  By reference to the terms attached to the complainant’s previous period of employment with the respondent, it is apparent why she took issue with the statutory notice received.  On balance, had transparent information in relation to statutory or contractual notice been provided to the complainant in accordance with section 3 of the 1994 Act, it is unlikely that this would have been an issue for the complainant. 

The complainant is not required to show detriment to justify compensation under the 1994 Act rather I have considered just and equitable compensation having regard to all the circumstances, including the level of omission or deviation from the requirements under section 3 of the 1994 Act, the practical benefit or significance of the omissions to the complainant and the fact that the complainant is no longer in the respondent’s employment, and order compensation of €2,692.00.  This sum equates to approximately two weeks’ remuneration in respect of the complainant’s employment with the respondent.   

CA-00072065-001 (Unfair Dismissal)

For the reasons set out above, I find that I do not have jurisdiction in relation to the claim under the 1977 Act.  My decision therefore is to dismiss the claim.

CA-00072065-002 (Terms and Conditions of Employment)

For the reasons set out above, I find that the complaint of a contravention of section 3 of the 1994 Act is well founded and order the respondent pay to the complainant compensation of €2,692.00 which I consider just and equitable having regard to all of the circumstances.

Unfair Dismissals Act – Living and working outside of the State – Ordinarily resident – Terms of Employment (Information) Act 1994