ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00001943

Parties:

Complaints:

Date of Adjudication Hearing: 15/08/2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background.

The Complainant was employed as a Cleaner by the Respondent from 5th January 2010 until her employment was terminated on 23rd September 2015, with notice of the termination given on 24th August 2015. The Complainant was paid £1044.00 into her Bank Account each month – evidence from the Bank of Ireland provided to the Hearing. The Complainant resided in the Embassy.

The Complainant referred complaints to the Workplace Relations Commission on 8th February 2016 alleging the Respondent had breached the Terms of Employment (Information) Act, 1994 – 2012, the National Minimum Wage Act, 2000, the Payment of Wages Act, 1991 – 2015 , S.I. 36/2012 and the Redundancy Payments Act , 1967.

The Complaint lodged under S.I. 36/2012 CA-000-006 was withdrawn at the Hearing.

PRELIMINARY ISSUE – JURISDICTION – SOVERIGN/STATE IMMUNITY.

RESPONDENT’S POSITION.

The Respondent stated the Complainant worked as a domestic worker at the Respondent’s Embassy and at the Respondent’s Ambassador’s Official Residence. The Complainant had previously worked in two other Embassies between 1999 and 2009 and she did have a service staff visa issued to her. Due to some irregularity in the Complainant’s Visa Application the Respondent was unsuccessful in applying for a service card for the Complainant. The Respondent argued the Embassy enjoys sovereign and/or diplomatic immunity and they submitted that the WRC does not have jurisdiction to hear these complaints. They referenced -Article 29.3 of the Irish Constitution – the Vienna Convention of 1961 and 1963. They also referenced relevant case law as follows – the Supreme Court Decision in Canada v Employment Appeals Tribunal - EDA 1417, - in Italian Embassy v Aideen Damery – EAT case in Caffery v Instituto Cervantes UD 569/96. They also referenced international case law in support of their argument – Cudak v Lithunia in 2010 – Sabah Ei Leil v France in 2011. They also dealt with the Case Law identified by the Complainant in support of their argument that the Embassy did not have sovereign and or diplomatic immunity.

COMPLAINANT’S POSITION.

The Complainant in their submission rejected the submission of the Respondent that they had sovereign and /or diplomatic immunity. They referenced in summary the Decision of the European Court of Human Rights in Mahamdia v Peoples Democratic Republic of Algeria in 2012 – Decisions of the EAT in UD/1219/2013, UD 1200/2013, UD 1221/2013 and the Convention concerning decent work for domestic workers by the International Labour Organisation.

FINDINGS AND DECISION ON PRELIMINARY ISSUE.

I have examined in detail the laws governing diplomatic immunity with particular reference to both Regulation No 44/2001 of the European Union and Convention on Jurisdictional Immunities of States and their Property adopted by the United Nations General Assembly in December 2004.

Regulation No 44/2001: This Regulation of the European Union was enacted to regulate certain differences between national rules governing jurisdiction and recognition of judgements across Member States.

Regulation 18 (2) provides as follows: Where an employee enters into an individual contract of employment with an employer who is not domiciled in a Member State but has a branch, agency or other establishment in one of the Member States, the employer shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that Member State”.

Regulation 21 provides as follows: The provisions of this section may be departed from only by an agreement on jurisdiction: 1. which is entered into after the dispute has arisen, or 2. which allows the employee to bring proceedings in courts other than those indicated in this Section”.

The Court of Justice of the European Communities in Case C – 154/11 Ahmed Mahamdia v People’s Republic of Algeria has interpreted Regulation 18 as follows:

49. 49. It should be recalled that the functions of an embassy, as stated in Article 3 of the Vienna Convention on Diplomatic Relations, consist essentially in representing the sending State, protecting the interests of the sending State, and promoting relations with the receiving state. In the exercise of those functions, the embassy, like any other public entity, can act ‘iure gestionis’ and acquire rights and obligations of a civil nature, in particular as a result of concluding private law contracts. That is the case where it concludes contracts of employment with persons who do not perform functions which fall within the exercise of public powers.
50. As regards the first criterion mentioned in paragraph 48 above, an embassy may be equated with a centre of operations which has the appearance of permancy and contributes to the identification and representation of the State from which it emanates.
51. As regards the second criterion mentioned in that paragraph, it is clear that the subject-matter of the dispute in the main proceedings, namely a dispute in the field of employment relations, has a sufficient link with the functioning of the embassy in question with respect to the management of it’s staff.
52. Consequently, as regards contracts of employment concluded by an embassy on behalf of the State, the embassy is an “establishment” within the meaning of Article 18 (2) of Regulation No 18 (2) 44/2011 where the functions of the employees with whom it concludes those contracts are connected with the management activity carried out by the embassy in the receiving State.

The CJEU went on to find in relation to Regulation 18 (2) that “an embassy of a third state situated in a Member State is an establishment within the meaning of that provision, in a dispute concerning a contract of employment concluded by an embassy on behalf of the sending State, where the functions carried out by the employee do not fall within the exercise of public powers. It is for the national court seised to determine the precise nature of the functions carried out by the employee”.

The CJEU went on to find at Paragraph 61 of it’s Decision as follows: “Article 21 of Regulation No 44/2001 restricts the conclusion by the Parties to a contract of employment of an agreement on jurisdiction. Such an agreement must thus be concluded after the dispute has arisen or, if it was concluded beforehand, must allow the employee to bring proceedings before courts other than those on which those rules confer jurisdiction”.

UN Convention:

Article 11 – Contracts of employment –

1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed, in whole or in part, in the territory of that other State.

• Paragraph 1 does not apply if: (a) the employee has been recruited to perform particular functions in the exercise of governmental authority; (b) the employee is (i) a diplomatic agent, as defined in the Vienna Convention on Diplomatic Relations of 1961: (ii) a consular officer, as defined in the Vienna Convention on Consular Relations of 1963: (iii) a member of the diplomatic staff of a permanent mission to an international organisation or of a special mission, or is recruited to represent a State at an international conference ;(iv) any other person enjoying diplomatic immunity: (c) the subject matter of the proceeding is the recruitment, renewal of employment or reinstatement of an individual: (d) the subject matter of the proceeding is the dismissal or termination of employment of an individual and, as determined by the Head of State, the Head of Government or the Minister for Foreign Affairs of the Employer State, such a proceeding would interfere with the security interests of that State: (e) the employee is a national of the employer state at the time when the proceeding is instituted, unless this person has the permanent residence in the State of the forum: (f) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject-matter of the proceeding”

The established facts in relation to this complaint are as follows: -

• The Respondent issued a Note Verbal to the WRC dated 9th December 2016.
• The Complainant issued a response to the WRC on 29th May 2017.
• The Complainant was not provided with a written statement of her Terms and Conditions of Employment. However both Parties confirmed that the Complainant had been employed as a Domestic Worker at both the Respondent’s Embassy and at the Respondent’s Ambassadors Official Residence.
• The Complainant was also provided with accommodation by the Respondent.

I find that the Complainant has a right to bring proceedings before the Adjudication Officer as she is not restricted by either the UN Convention on Human Rights or by Regulation 44/2001. I find I have jurisdiction to hear these complaints.

SUMMARY OF COMPLAINANT’S POSITION.

Terms of Employment (Information) Act, 1994 – 2015. The Complainant stated she had not been provided with a written statement of her Terms and Conditions of Employment contrary to Section 3 of this Act which provides that an Employer must provide an employee with a written statement within the period of two months of the commencement of the employment.

Payment of Wages Act, 1991 – 2015. The Complainant argued that under Section 4(1) of this Act an employer is obliged to give an employee a statement in writing specifying clearly the gross amount of the wages payable to the employee and the deductions made. The Respondent did not comply with this Section of the Act.

National Minimum Wage Act, 2000. The Complainant’s Solicitor on behalf of the Complainant served a Section 23 Notice on the Respondent dated 19th October 2015 seeking the average hourly rate of pay paid to the Complainant from 2010 to 25th September 2015. There was a response from the Ambassador dated 13th November 2015. They stated that the Complainant had full board in the residence of the Ambassador plus health insurance and she was also paid a 13th Month’s salary. Section 14(1) of the Act obliges an Employer to pay an hourly rate of pay that on average is not less than the minimum hourly rate of pay operational at the time. When she commenced employment the rate was £8.65 an hour. The Complainant worked 47.5 hours a week equal to 190 hours a month. Her gross pay on a monthly basis was £1044.00. The full board allowance is £54.13 per week (216.52 a month). Therefore her gross pay per month amounts to £1260.52. This is over £2.00 less per hour worked from 5th January 2010 to 25th September 2015. Arrears of £28,593.10 is being claimed. The Complainant is also claiming payment of overtime for work on the occasional Saturday from 6.30pm to 12 midnight for which she was never paid. This occurred some five times a year.

The Complainant presented a spreadsheet to the Hearing showing the breakdown of sums due to be paid to the Complainant amounting to £35,868.38.

Redundancy Payments Act, 1967. The Complainant’s Contract of Employment was terminated by the Respondent on 23/9/2015. The Complainant stated that she was unsure if her employment was insurable. If her employment is insurable then the Complainant is entitled to payment of her Redundancy entitlements under this Act.

SUMMARY OF RESPONDENT’S POSITION.

There was no submission made either in writing or at the Hearing by the Respondent in relation to any of the Complaints.

FINDINGS AND CONCLUSIONS.

On the basis of the evidence presented to me I find as follows –

Terms of Employment (Information) Act, 1994. – Section 3 of this Act provides that an Employer must provide an Employee with a written statement of their Terms and Conditions of Employment within the period of two months of the commencement of the employment. The Complainant stated she had not been provided with a written statement. This was not disputed by the Respondent. I find that the Respondent has breached Section 3 of the Act. This complaint was submitted to the Workplace Relations Commission on 8th February 2016. I find the Respondent has breached the Act.

Payment of Wages Act, 1991 – 2015. This complaint was lodged with the Workplace Relations Commission on 8th February 2016. Therefore in accordance with Section 41(6) of the Act the period covered by this complaint is from 9th August 2015 to the termination of the employment on 23rd September 2015. There was no application for an extension of time under Section 41(8) of the Act of 2015. The Complainant referred to overtime not being paid when she stated she was required to work in the Residence of the Ambassador when functions were being held some five times a year. The Complainant did not identify any date she worked this overtime between 9th August 2015 and 23rd September 2015.

Section 5(1) of the Payment of Wages Act provides as follows – “An employer shall not make a deduction from the wages of an employee………unless – (a) the deduction…is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction…is required or authorised to be made by virtue of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction…(c) in the case of a deduction the employee has given his prior consent in writing to it.” There was no evidence presented to me in relation to any deduction made or when such deductions were in fact made. I find there was no breach of the Act.

The second complaint under this Act, under Section 4(1), relates to the provision by the Respondent of Payslips to the Complainant. I find I have no jurisdiction under this Section of the Act. My only jurisdiction under this Act refers to Section 5 of the Act, deductions.

Minimum Wage Act, 2000. The Complainant was not provided with payslips during her employment from 2010 to September 2015. The Complainant did provide evidence from her Bank Statements for 2010 and for 2015 which shows that the Complainant was paid £1044.00 into her Bank Account each month. This was paid in two transfers on the same day, one in the amount of £294.00 and the second in the amount of £750.00. This the Complainant and her Legal Representatives argued at the Hearing must be taken as her Gross wages per month rather than her net wages per month. They asserted that in the absence of payslips they were unable to say if tax and prsi had been deducted as required by law. The Adjudication Officer asked if they had sought to ascertain from the Revenue Commissioners or the Department of Employment and Social Protection if deductions had been made from her wages each month. Their response was they had not sought to seek this information and were unable to answer why they had not sought to do so. Accordingly I have to view the payments into the Complainants Bank Account as net wages and not gross wages as claimed by the Complainant and her Legal Representatives. In the absence of this information, relating to the Complainant’s gross pay, I am not in a position to determine the average hourly rate of pay of the Complainant.

I also note that the Respondent did not provide the required information to the Complainant when she and her Solicitor made a Section 23 request.

Redundancy Payments Act, 1967. The same issue arising under this Act in relation to the complaint of the Complainant seeking her statutory redundancy entitlements. Section 7(1)(b) of the 1967 Act provides as follows – “he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of two years ending on that date.”. The Complainant in their written submission dated 9th October 2016 state as follows – “ As the Respondent at no stage provided a payslip to the Claimant, she is uncertain as to whether her employment was insurable”.

The Complainant and her Legal Team did not seek to acquire this information and no reason was forthcoming as to why.

I find I have no jurisdiction to hear this complaint as there was no evidence presented to me by the Complainant as to whether she satisfied Section 7(1)(b) of the Redundancy Payments Act, 1967.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00002457-001 – National Minimum Wage Act, 2000. In accordance with Section 41(5) of the Workplace Relations Act, 2015 and in view of my findings above I declare I do not have jurisdiction to hear this complaint as neither the Respondent or the Complainant provided the necessary information to the Adjudication Officer in relation to the gross hourly rate.

CA-00002457-003 – Payment of Wages Act, 1991 – 2015. In accordance with Section 41(5) of the Workplace Relations Act, 2015 and in view of my findings above I declare this complaint is not well founded as the Complainant has failed to show what deductions and when these deductions were   made by the Respondent.

CA-00002457-004. In accordance with Section 41(5) of the Workplace Relations Act, 2015 and in view of my findings above I declare I do not have jurisdiction in relation to the complaint under Section 4 of the Payment of Wages Act, 1991-2015.

CA-00002457-005 – Terms of Employment (Information) Act, 1994. In accordance with Section 41(5) of the Workplace Relations Act, 2015 and in view of my findings above I declare this complaint is well founded. The Respondent has breached the 1994 Act. I direct the Respondent to pay the Complainant compensation of £1000.00 within 42 days of the date of this Decision.

CA-00002457 -006 – S.I. 36/2012. This complaint was withdrawn at the Hearing.

CA-0002457-OO7. Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

In Accordance with Section 39 of the Redundancy Payments Act, 1967, I declare I do not have jurisdiction to hear this complaint as the Complainant stated they were unable to confirm if the Complainant satisfied Section 7(1)(b) of the Act.

Dated:   14th December 2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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