Case Number: DEC-E2018-015. Workplace Relations Commission

• Judgment Date: 01 August 2018
• Year: 2018
• Docket Number: DEC-E2018-015
• Court: Workplace Relations Commission
• Parties: XY (Represented by Gallen Alliance Solicitors) V Matrix Shipping Ltd. (Represented by Waters and Associates Solicitors)

EMPLOYMENT EQUALITY ACTS 1998-2011 DECISION NO. DEC-E2018-015 PARTIES XY (Represented by Gallen Alliance Solicitors) AND Matrix Shipping Ltd. (Represented by Waters and Associates Solicitors) File reference: EE/2013/684 & EE/2014/018 Date of issue: 10 August 2018 1. Dispute

This case concerns complaints by XY that he was discriminated against by Matrix Shipping Ltd. on the ground of age, gender and disability contrary to sections 6(2) of the Employment Equality Acts in relation to his conditions of employment and discriminatory dismissal in terms of section 8 of those Acts, failure to provide reasonable accommodation, victimisation and discriminatory dismissal.

2. Background

The complainant referred complaints under the Employment Equality Acts to the Director of the Equality Tribunal on 23 December 2013 and 23 January 2014. In accordance with his powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations commission delegated the cases on 16 November, 2015 to me, Emile Daly, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts. This is the date I commenced my investigation.

This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.

I proceeded to aHearing on 23 November 2015 involving the complainant, the respondent and Irish Ferries Ltd, and subsequently issued a decision (DEC-E2016-051) which found that the complainant was not employed by Irish Ferries Ltd (IFL). I proceeded to a second hearing on 9 May 2016 involving the complainant and Matrix Shipping Ltd (the respondent). The complainant was present and represented by Adrian Twomey Solicitor of Gallen Alliance Solicitors. The respondent was present and represented by Conor Power S.C. and Jim Waters, Waters and Associates Solicitors.

3. Preliminary Application

A preliminary application has been brought by the Respondent. The Respondent seeks a ruling that the Equality Tribunal in Ireland has no jurisdiction for two reasons:

(a) That the terms of the employment contract expressly states that in the event of a dispute, grievance, conflict or arbitration the parties will submit to the jurisdiction of the Republic of Cyprus.

(b) The jurisdiction over contracts of employment is determined by reference to Article 19 of the Council Regulation (EC) No. 44/2001 and the interpretation of Article 19, urged by the Respondent, is that where an employee is peripatetic and his place of work is a ship travelling between Member States; that the jurisdiction is determined either by the flag state of that ship or by the location of the business head office. In both cases, this is Cyprus.

Consequently the Respondent submits that as there is no jurisdiction to bring these proceedings in Ireland and insofar as any relief may be sought, it must be sought in Cyprus.

4. Agreed Facts

At the hearing, the following facts were agreed:

1. 1. The Respondent is a company which maintains and supplies crew to ferry ships. For the purpose of these proceedings it is the crewing aspect of the Respondent’s business that is relevant.
   2. The companies that own the ships are separate and distinct from the Respondent. All the ships that are owned by the company, IFL, are crewed by the Respondent. These ships ferry passengers, typically on a daily basis, between Ireland and the UK and Ireland and France.
   3. The Respondent also services and crews other ferry ships in the Black Sea (owned by a Romanian company), cruises liners (owned by UK company) and to merchant tanker vessels, which travel worldwide.
   4. In total the Respondent employs 783 employees. All of which are under the same contract of employment and bar eleven employees, all work on-board ships, the majority work on ferries ships that travel between Ireland, UK and France. The eleven employees that are land based, work in the Respondents headquarters office in Limassol, Cyprus and work in the areas of Human Resources, Purchasing and Accounts.
   5. The Respondent also has a satellite office in Dublin port, beside the IFL offices.
   6. The Complainant worked as a Senior Purser on the ship the “Isle of Inishmore”. This ship travels between Rosslare, Ireland and Pembroke, Wales.
   7. Prior to his employment with the Respondent the Complainant worked directly for IFL, the owner of the “Isle of Inishmore”, until 2006, when he was made redundant. He then worked for a crewing company (DFML) who maintained and crewed the “Isle of Inishmore” until January 2012, at which point the Respondent took over the contract with IFL. There is a dispute as to whether these transfers constituted transfers of undertaking but this is a matter that is not necessary to consider at this stage. It is common case that the Complainant ceased working for DFML in January 2012 and started working for the Respondent. However it appears that it was not until June 2013 that he signed a contract of employment with the Respondent.
   8. In any event, in June 2013, the employment contract between the parties was agreed. Insofar as it is relevant, the location of the signing of the agreement was as follows: the managing director of the Respondent signed the terms and conditions of the employment in Dublin and the Complainant subsequently signed the agreement on board the “Isle of Inishmore.” The port of engagement is identified, in the contract as being Rosslare, Ireland.
   9. The registered office of the Respondent is in Limassol, Cyprus.
   10. The ship sails under the Cypriot flag and therefore, insofar as it is relevant, the flag state is Cyprus.
   11. A dispute arose between the parties and the Complainant issued proceedings to the Equality Tribunal
   12. In terms of the preliminary objection, insofar as the parties accept that Council Regulation EC No. 44/2001 (commonly referred to as Brussels I) applies, the parties agree that Council Regulation 1215/2012 (Brussels recast) does not amend the original wording of Council Regulation EC No. 44/2001 articles 18-21, which govern the jurisdiction of individual contracts of employment. They accept that Cyprus is a signatory to the Council Regulation EC No. 44/2001.

13. They agree that, as the company is registered in Cyprus that the Respondent is domiciled in Cyprus. This is in keeping with Article 60 (1) and (2) of Council Regulation 44/2001, whereby companies and legal persons have their domicile in the place where their registered office is or their central administration or their principal place of business.

14. They agree that a contract may not be determinative and Article 19 may take precedence over what is expressly agreed. Article 3.3 of Council Regulation (EC) 593/2008 (Rome I) which must be read consistently with the provisions of Council Regulation (EC) 44/2001 states:

“when all other elements relevant to the situation at the time of choice are located in a country other than the country whose law has been chosen, the choice of the parties shall not prejudice the application of provision of the law of that other country which cannot be derogated from by agreement.”

It is accepted by both parties that Article 18 – 21 of Council Regulation (EC) 44/2001 is the applicable law, determining jurisdiction, in such circumstances.

15. Therefore in order to succeed in the preliminary application the Respondent needs to demonstrate that not only that the chosen jurisdiction was Cyprus but also that an interpretation of Article 19, favours the...