A Complainant v A Company
OFFICE OF THE DIRECTOR OF EQUALITY INVESTIGATIONS
File ref: EE/2000/103
EMPLOYMENT EQUALITY ACT, 1998
Equality – Discrimination – Preliminary issue – Jurisdiction of the tribunal to hear complaint – Employment Equality, Act 1998
This dispute concerned a preliminary issue of whether a claim by a complainant that he was discriminated against by his employer on the grounds of gender and sexual orientation, contrary to the provisions of the Employment Equality Act, 1998, is within the jurisdiction of the Director of Equality Investigations. The complainant referred to the Contractual Obligations (Applicable Law) Act, 1991 which he stated was enacted to give force of law in this State to the Convention on the Law Applicable to Contractual Obligations (the Rome Convention) signed at Rome in June 1980. The purpose of the Rome Convention was to establish uniform rules concerning the law applicable to contractual obligations within the then European Economic Community. The respondent's representative declined to provide a submission or any other arguments to support its case, relying instead on a preliminary finding of the Labour Court that it did not have jurisdiction to hear the complainant's dismissal complaint.
Held The Equality Officer ruling on the preliminary issue determined that the tribunal did not have jurisdiction to investigate this complaint under the provisions of the Employment Equality Act, 1998.
Date of issue: 19 August 2002
1.1 This dispute concerns the preliminary issue of whether a claim by a complainant that he was discriminated against by his employer on the grounds of gender and sexual orientation, contrary to the provisions of the Employment Equality Act, 1998, is within the jurisdiction of the Director of Equality Investigations. As an associated determination of the Labour Court has already issued without naming the parties (see 2.2 below), there appears to be no reason to identify them in this decision.
1.2 The complainant referred a claim to the Director of Equality Investigations on 19 October 2000 under the Employment Equality Act, 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act.
The question of jurisdiction
2.1 The respondent retail company, which had its head office in England, had stores in both the Republic of Ireland and Northern Ireland. In October 1998, the complainant was appointed to the position of Loss Prevention Officer, with responsibility for several stores in the Republic of Ireland. It was necessary to establish, as a preliminary issue, whether the complainant was an employee under the jurisdiction of Irish legislation. Submissions were sought from both parties on this preliminary issue.
The complainant's submission was received on 22 June 2001, and copied to the respondent for a response.
2.2 The complainant had also referred a claim of discriminatory dismissal under the 1998 Act to the Labour Court, in accordance with section 77 (2) of the Act. In September 2001 the Court determined that it could not hear the complaint as the complainant was not an employee under the jurisdiction of Irish legislation ( A Retail Company and A Worker, EED014, attached as an Appendix to this decision).
2.3 Over a period of time, I issued several reminders to the respondent without reply, until in March 2002 a letter was received from the respondent's representative advising that as the "Appellate Court" had found it did not have jurisdiction the matter could not proceed further.
2.4 It would appear that there was some misunderstanding on the part of the respondent's representative. Two separate complaints were involved in this instance. The complainant referred his complaint of discriminatory treatment, properly, to the Director of Equality Investigations in accordance with section 77 (1) (a) of the 1998 Act. He referred his complaint of discriminatory dismissal, properly, to the Labour Court in accordance with section 77 (2) (a) of the 1998 Act. The fact that an appeal from a decision of the Director may be referred to the Labour Court would not detract from the fact that there were two separate issues under consideration. The substantive complaints may have different facts and different outcomes. It is obviously possible, for example, to fail in a complaint of discriminatory dismissal but succeed in a complaint of discriminatory treatment, simply because the facts support one finding but not the other.
2.5 As the case was formally delegated to me under section 75 of the Act, I concluded that I should issue a formal decision on the preliminary issue of jurisdiction and notified both parties of my proposed course of action. The respondent's representative, in a letter dated 10 June 2002, objected to me "seeking to either look or go behind" the Labour Court determination. The representative stated that if I proceeded as I had suggested, it would "give rise to an inherently and fundamentally flawed Determination" on my part. These suggestions did not alter my conclusion that a complaint had been properly referred to the Director, had been properly delegated to me and required a formal decision in accordance with the 1998 Act.
3. SUMMARY OF THE COMPLAINANT'S CASE
3.1 The complainant referred to the Contractual Obligations (Applicable Law) Act, 1991 which he stated was enacted to give force of law in this State to the Convention on the Law Applicable to Contractual Obligations (the Rome Convention) signed at Rome in June 1980. The purpose of the Rome Convention was to establish uniform rules concerning the law applicable to contractual obligations within the then European Economic Community.
3.2 Article 3.1 of the Convention provides that a contract shall be governed by the law chosen by the parties. This is qualified by Article 6.1, which provides that
Notwithstanding the provisions of Article 3, in a contract of employment a choice of law made by the parties shall not have the result of depriving the employee of the protection afforded to him by the mandatory rules which would be applicable under paragraph 2 in the absence of choice.
"Mandatory rules" are defined in Article 3.3 as rules of law which cannot be derogated from by contract, and the complainant states that this clearly includes legislation such as the 1998 Act.
3.3 Article 6.2 of the Convention provides that
...a contract of employment shall, in the absence of choice in accordance with Article 3, be governed:
(a) by the law of the country in which the employee habitually carries out his work in performance of the contract, even if he is temporarily employed in another country; or
(b) if the employee does not habitually carry out his work in any one country, by the law of the country in which the place of business through which he was engaged is situated;
unless it appears from the circumstances as a whole that the contract is more closely connected with another country, in which case...
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