UD1219/2013, UD1220/2013, UD1221/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF: CASE NO.

Myra Calderon

- appellant 1 UD1219/2013

Laylanie Laporga

– appellant 2 UD1220/2013

Jennifer Villaranda

- appellant 3 UD1221/2013

against the recommendation of the Rights Commissioner in the case of:

Khalid Nasser Rashed Lootah

– respondent 1

Mahra Metad Alghubaisi

– respondent 2

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman: Ms N. O'Carroll-Kelly B.L.

Members: Mr. A. O'Mara

Mr J. Jordan

heard this appeal at Dublin on 25th November 2014

Representation:

Appellant(s) : Ms Claire McQuillan, MacGuill & Company Solicitors,

34 Charles Street West, Dublin 7

Respondent(s) : no appearance by or on behalf of the respondent

The determination of the Tribunal was as follows:-

This case came before the Tribunal by way of three employees appealing against the recommendations of a Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007, refs: r-126926-ud-12/JC, r-126956-ud-12/JC & r-126991-ud-12/JC.

Preliminary matters

There was no appearance by or on behalf of the respondents in this matter. The respondents were notified separately of the hearing. In line with protocol the Employment Appeals Tribunal on the 5^th November 2014 notified the Department of Foreign Affairs and Trade of the hearing date. By letter dated 17^th November 2014 the Department of Foreign Affairs and Trade confirmed delivery of the hearing notices on the 12^th November 2014 to the Ministry of Foreign Affairs in Abu Dhabi. The Tribunal did not receive a notice of appearance (T2B) or any correspondence from the respondents. The Tribunal is satisfied that the respondents were properly served and were on notice of the hearing.

Section 2 of the Unfair Dismissals Act, 1977 states:

This Act shall not apply in relation to any of the following persons:

(1) (a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him and whose dismissal does not result wholly or mainly from the matters referred to in section 6 (2) (f) of this Act,

Myra Calderon commenced her employment with the respondents on the 16^th December 2010 whilst the family were in residence in the United Arab Emirates. She moved with the family to Ireland on the 14^th April, 2011. There was no interruption to her service with the respondents.

Laylanie Laparga commenced her employment with the respondents on the 16^th December 2010 whilst the family were in residence in the United Arab Emirates. She moved with the family to Ireland on the 14^th April, 2011. There was no interruption to her service with the respondents.

Jennifer Villaranda commenced her employment with the respondents in October 2008. She moved with the family to Ireland on the 14^th April, 2011. There was no interruption to her service with the respondents.

The Tribunal is satisfied that all of the appellants were employed by the respondents for a period in excess of one year and that the majority of their service, save for Jennifer Villaranda, was performed in this jurisdiction. Section 2 (1) (a) of the Act is employer specific and not jurisdiction specific and the jurisdictional exclusion set out at Section 3 (a) is not relevant to the facts of this case.

The appellants left their employment on the 12^th January, 2012. The appellants presented their claims to the Rights Commissioner on the 5^th October, 2012 under the Organisation of Working Time Act 1977, the Unfair Dismissal Act 1977 to 2007. They lodged claims under other Acts for which this Tribunal does not have jurisdiction to deal with.

Section 8 (2) Unfair Dismissal, Act 1977 states:-

A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under section 17 of this Act made for the purposes of subsection (8) of this section) to a rights commissioner or the Tribunal, as the case may be, within 6 months of the date of the relevant dismissal and a copy of the notice shall be given to the employer concerned within the same period.

Section 7 (2) (b) of the 1993 Amendment Act states:-

If the Rights Commissioner or the Tribunal, as the case may be, is satisfied that exceptional circumstances prevented the giving of the notice within the period aforesaid, then, within such period not exceeding 12 months from the date aforesaid as the rights commissioner or the Tribunal, as the case may be, considers reasonable,

In the English case of Byrne v PJ Quigley Ltd (1995) ELR 205, the Employment Appeal Tribunal considered section 7(2) of the Unfair Dismissals (Amendment) Act 1993, which allows the Rights Commissioner or the Employment Appeals Tribunal to extend the period for claiming unfair dismissal in circumstances where they are “satisfied that exceptional circumstances prevented” the making of the claim during the requisite six-month period In that case the Tribunal stated as follows:

“the words ‘exceptional circumstances’ are strong words and should be contrasted with the milder words ‘reasonably practicable’ in the claimant’s written submission, or ‘reasonable cause’ which permits the extension of time for lodging a redundancy claim under section 12(2)(b) of the Redundancy Payments Act, 1971. ‘Exceptional’ means something out of the ordinary. At the least the circumstances must be unusual, probably quite unusual but not necessarily highly unusual....In order to extend the time the EAT must be satisfied that the exceptional circumstances ‘prevented’ lodging the claim within the general time limit. It is not sufficient if the exceptional circumstances caused or triggered the lodging of the claim” (emphasis added).

All three appellants were living in the private residence of the respondents in less than ideal circumstances. The first named respondent held all of the appellants official travel, identification and employment documentation. They were scared and subjected to extreme working conditions. They were rescued from the residence, in the middle of the night, by the Migrant Rights Centre of Ireland. They left with nothing. They did not have access to any of their employment documentation, official papers, passports etc. They had very little money, very little English and other than the Migrant Rights Centre had absolutely no support system in this jurisdiction. The Tribunal is satisfied that the unacceptable and very exceptional circumstances that the appellants found themselves in goes far beyond those suggested in the Byrne V P.J. Quigley Ltd case and that those unacceptable and very exceptional circumstances did prevent them from lodging their claim within time.

On that basis the Tribunal extended the time limit for bringing the claim to 12 months and determine therefore that the Tribunal has jurisdiction to hear the appeal.

The appellants representative informed the Tribunal that the respondents had relied on diplomatic immunity when the matter was first heard before the Rights Commissioner.

The onus rests on the respondent to make the case that the Tribunal has no jurisdiction to hear the case on the grounds of diplomatic or sovereign immunity. In this particular case, the respondents made no such application. In the circumstances, it is the view of the Tribunal that it is not only inappropriate for the Tribunal to “step into the shoes” of the United Arab Emirates Embassy and plead sovereign immunity on its behalf but it would be grossly unfair to the appellants to do so. In any event the Tribunal considered two important cases dealing with sovereign immunity:

In Government of Canada v Employment Appeals Tribunal (1991) [the Canadian embassy case’]the Supreme Court, in an employment law claim by a dismissed embassy driver, accepted that the doctrine of absolute sovereign immunity no longer existed. However, the Court found that a restricted form of state immunity existed and applied it to the case. The driver was found to be involved in the employing government’s public business organisation and interests because of his peculiar position of trust and confidentiality.

The European Court recently affirmed that absolute sovereign immunity no longer applies.

In Ahmed Mahamdia v Peoples’ Democratic Republic of Algeria Case C-154/11, (‘Mahamdia’) a relief driver at the Algerian Embassy contested his dismissal before the German courts. Algeria argued that as a foreign state it enjoyed immunity from jurisdiction in Germany, where the embassy in question was located. According to the Court, the case concerned a contract of employment concluded by the embassy where the functions of the employee did not fall within the exercise of public powers. In the exercise of its functions, an embassy, like any other public entity, can acquire rights and obligations of a civil nature, in particular as a result of concluding private law contracts.

The Tribunal is satisfied that all three appellants’ functions as a Nanny/Domestic Help in the respondents private residence did not fall ‘within the restricted form of state immunity’ as considered in the Canadian case nor did their position involve them “within the exercise of public powers” according to the test set out in ‘Mahamdia’

Determination

The appellants are alleging they were constructively dismissed from their employment with the respondents. Section 1 of the Unfair Dismissals Act defines constructive dismissal as:

“the termination by the employee of his contract of employment with this employer whether prior notice of the termination was or was not given to the employer in the circumstances in which, because of the conduct of the employer the employee was or would have been entitled or it was or would have been reasonable for the employee to terminate the contract of employment without giving prior notice of the termination to the employer”

The burden of proof, which is a very high one, lies on the appellants. They must show that their resignation was not voluntary. The legal test to be applied is “an and or test”. Firstly, the Tribunal must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract. If the Tribunal is not satisfied that there has been a significant breach of the contract it can examine the conduct of both the employee and the employer together with all the circumstances surrounding the termination to establish whether or not the decision of the employee to termination of the contract was a reasonable one.

The appellants were placed with the respondents by an Employment Agency in the Philippines. They moved to Ireland with the respondents from the United Arab Emirates in April 2011. They lived and worked in the private residence of the respondents. They commenced their duties daily at 6.30am and finished most days close to midnight. They were not permitted to retire for the evening until the respondents had done so. Evidence was adduced that they worked at least 15 hours per day, 7 days per week and received €170.00 each in cash per month. Ms.Calderon, when asked by the Tribunal stated that she had never received a payslip or any pay related documentation. When asked if her PRSI or USC charges were paid she stated that she did not know. They were only permitted to take a 15 minute break in the morning and again in the evening. They all shared one room with only two beds. Two of the appellants had to share one bed. Their duties involved caring for the respondents children together with the entire spectrum of domestic duties. They stated thatthey were regularly subjected to verbal abuse and were often referred to as “rubbish” and “scavengers”. They were also subjected to physical abuse on occasions. Evidence was adduced that the first named respondent physically hit one of them on an occasion when he lost his temper because Ms. Loporga could not get his son to eat his dinner. In a fit of temper he upturned the table and all of its content and then proceeded to hit them all using a towel. He was said to have regular violent verbal outbursts which were directed at them. The second named respondent on one occasion threw wet clothes into the face of one of the appellants whilst verbally chastising her because she wanted to wear the clothes which had been washed. The appellants stated that they were all scared and felt trapped. They were not permitted to leave the residence and had no facilities to communicate with anyone outside of the residence. The first named respondent held all of their official documents. On the night of the 12^th January, 2012 they were “rescued” from the residence with the help of the Migrant Centre of Ireland.

From the uncontested evidence adducedin this matter the Tribunal conclude that there was a complete non-adherence to any of the appellants employment rights. Each and every breach in the circumstances of this case went to the root of the contract. They were severely underpaid, worked hours way in excess of the statutory limits, in an environment that was at times said to be abusive, violent and degrading and most certainly lacked dignity and respect for the employees, they received little or no breaks, no leave annual or otherwise, no bank holiday entitlements, to name but a few.

Having considered all of the circumstances of this case the Tribunal upsets the Rights Commissioner’s recommendation and awards each of the appellants the sum of €80,000.00 under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This ________________________

(Sgd.) ________________________

(CHAIRMAN)