Case Number: ADJ-00016246. Workplace Relations Commission.
| Docket Number | ADJ-00016246 |
| Hearing Date | 17 December 2018 |
| Date | 01 July 2019 |
| Year | 2019 |
| Court | Workplace Relations Commission |
| Parties | A Meat Factory Operative v A Meat Processors |
In accordance with Section 41 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Act 1977 - 2015, these complaints were assigned to me by the Director General. I conducted a hearing on December 17th 2018 and gave the parties an opportunity to be heard and to present evidence relevant to the complaint.
Background:|
The complainant is a meat factory operative and the respondent is a registered employment agency. In February 2017, the complainant said that he met the managing director of the company, (“MD”) and that he was offered an assignment in Norway. He started work in a meat processing plant there on February 27th 2017. He worked in Norway until December 2017 and in January 2018, he went to a meat factory in Sweden. In June 2018, he went back to Norway. The complainant is from Brazil and when he was working in Norway, he got to know another Brazilian employee (“BE”) who had been there for 27 years. BE remarked that the complainant was a good worker and that he should consider coming to work directly for the Norwegian company, which I will refer to as “Norway Meats.” The complainant said that he approached the owner and asked him if he could come to work directly for Norway Meats. The owner said that he would offer him a job as long as MD approved. On June 11th 2018, at a meeting in MD’s car in Norway, the complainant told his boss that he would like to move to Norway and become a direct employee of Norway Meats. MD didn’t approve and he told the complainant that if he took up this offer, he would remove his entire agency workforce from Norway Meats. MD dismissed the complainant and his last day at work was June 15th 2018. The complainant claims that his dismissal was unfair. He also claims that he was dismissed without notice and that, while he was employed by the respondent, he was not issued with a statement setting out the terms and conditions of his employment. |
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Respondent’s Submission on the Issue of Jurisdiction Section 2 of the Unfair Dismissals Act 1977 sets out the categories of persons who are excluded from making a complaint under the Act. Subsection (3) deals with the issue of where the employee resides: (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. In their written statement submitted in advance of the hearing, the respondent stated that they are a provider of services in the meat industry in countries mainly outside Ireland. During his service with the respondent, the complainant was assigned to work on contracts in Norway and Sweden. Counsel for the respondent, Mr Rafter, argued that I have no jurisdiction to hear these complaints because the complainant is not ordinarily resident in Ireland. He presented a detailed submission on the issue of jurisdiction, based on the premise that, while the respondent is a body corporate with its principal place of business in Ireland, the complainant has not discharged the burden of proof to establish that; (a) He was domiciled in Ireland from the commencement of his employment to the date of his dismissal or, that, (b) He was ordinarily resident in the State during those times. Domiciled in Ireland The complainant is a Brazilian native and, arguing that his permanent home was not Ireland, Mr Rafter referred to the Supreme Court case of DT & FL and the Attorney General, in an unrecorded judgement of Mr Justice Keane on November 23rd 2003. In this, a family law case, the judge found that, “… a home set up in a particular place for an indefinite period may depend upon the continuance of circumstances which are themselves indefinite as to likely duration. In my view a home set up in the latter basis does not have the element of permanency as so defined which is an essential indicator of a change of domicile.” From the commencement of his employment, the complainant worked in Norway, and at the end, he worked in Norway. He also worked in Sweden for a portion of the time he was employed by the respondent. It is the respondent’s case that the complainant cannot maintain a claim that his domicile of choice was Ireland to bring himself within the protection of the Unfair Dismissals Act. Ordinarily Resident in Ireland Some time after he commenced employment with the respondent, the respondent was issued with a PAYE Exclusion Order for the complainant. This document is issued by the Revenue Commissioners to an employer to instruct them not to deduct tax or USC from an employee’s wages. On the PAYE Exclusion Order, the complainant’s address is given as Riskatunveien 38F, Hommersak 4310, Norway. From the evidence of the complainant’s payslips submitted at the hearing, it is apparent that he paid tax in Norway. Mr Rafter argued that the purpose of the complainant’s residence in Norway was clear, which was to work with the respondent. He referred to the High Court case of Chubb European Group PLV v The Health Insurance Authority [2018] IEHC 609. The finding in this case was that, “the words ordinarily resident should be construed according to their ordinary meaning and … by the general intention of the legislation in which they occur and, of course, with reference to the facts of the particular case.” Mr Rafter submitted that, in relation to the protection provided by the Unfair Dismissals Act, the term “ordinarily resident” should relate to employees linked in some “real or substantial way with the State.” Referring to the case of R v Barnet London Borough, ex parte Shah [1983] 2 AC 309, Mr Rafter quoted the words of Mr Justice Scarman, where he stated, “All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled…” On this basis, Mr Rafter argued that a person volunteering themselves to work in a country other than Ireland can only be construed as “ordinarily resident” in that country. Tax Legislation The respondent submitted that it would be wrong to simply apply the Revenue Commissioners’ definition of “ordinarily resident” in the State to determine the complainant’s entitlement under the Unfair Dismissals Act. Mr Rafter argued that the Taxes Acts have a fundamentally different purpose, compared to the Unfair Dismissals Act, and that if I reached a conclusion on the basis of the definitions set out in the tax laws, I would be going against the test established by the Supreme Court test as to how the term “ordinarily resident” is to be interpreted in different statutes. The Complainant’s Submission on the Issue of Jurisdiction Mr Cawley said that the complainant came to Ireland from Brazil in 2000 and was now an Irish citizen. He said that the complainant meets the “ordinarily resident” test established by the Revenue Commissioners for deciding if a person is employed in Ireland. Mr Cawley said that the respondent is an Irish-registered employer and the complainant was registered with them as an employee. When he was working abroad for the respondent, Mr Cawley said that the complainant maintained a home in Tullamore, County Offaly, where his family lived and where he went between assignments. Mr Cawley set out the complainant’s assignments from the commencement of his employments: 27 February 2017 – 3 December... |
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