ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00011028

Parties:

Complaints:

Date of Adjudication Hearing: 18/07/2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 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 initially employed with the Respondent as a Handyman effective from June 2011 and he served as Office Manager from August 2015 to August 2016 and as a Driver from August 2016 to 19th May 2017 when he terminated the employment. He had previously been employed from 2003 until October 2010 when he had been made redundant. As a Driver he was paid 1340.00 euro gross per fortnight.

The Complainant referred complaints to the Workplace Relations Commission on 24th July 2017 alleging the Respondent had breached the Organisation of Working Time Act, 1997 in relation to payment of Sunday Premium – a complaint under the Payment of Wages Act in relation to payment of a Bonus from 2014 to 2017, six weeks wages owed plus 50.00 euro expenses and a complaint under the Unfair Dismissal Act that he was unfairly dismissed.

PRELIMINARY ISSUE – JURISDICTION.

The Respondent issued a letter dated 27th June 2018 to the Director General Of the Workplace Relations Commission re – REFUSAL TO SUBMIT THE JURISDICTION OF THE WORKPLACE RELATIONS BY THE NAMED EMBASSY.

The Respondent did not attend the scheduled Hearing on 18th July 2018.

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”

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

SUMMARY OF COMPLAINANT’S POSITION.

Organisation of Working Time Act, 1997. The Complainant stated that he worked on average 6 days a week. He stated he was paid cash with Tax and PRSI deductions made. The Complainant stated that he would hazard a guess that he worked a Sunday on 8 weeks of the 16 weeks in the reference period covered by this complaint. He stated that when he worked on a Sunday he worked from either 1pm to 1am or to 6pm.

Payment of Wages Act, 1991 – The Complainant stated he was claiming Bonus Payments for the years 2014 to 2017 which were due to be paid to him at the end of each year and he is claiming €1800.00 for 2014 – €2680.00 for 2015 – €840 for 2016 and €2680 for 2017. He is claiming payment of 6 weeks wages of €2760.00 not paid to him – overtime of €6934.5 being 207 hours overtime worked and not paid – expenses of €468.00 taxi fares due and not paid and an out of station payment of €600.00 due and not paid being a total of€ 32,265.50 due and not paid.

Unfair Dismissals Act, 1977. The Complainant stated that he terminated the employment on 19th May 2017 as the behaviour of the Respondent in relation to non-payment of Bonus and other payments as set out under the complaint Payment of Wages Act, 1991 , he had no alternative but to terminate the employment. The Complainant stated that he is seeking compensation. The Complainant was requested by the Adjudication Officer to provide a statement from the Department of Social Protection in relation to any claims made by the Complainant since May 2017 and any evidence of mitigation of loss or alternative employment taken up since he terminated the employment on 19th May 2017 but this information was not provided by the Complainant.

The Complainant did confirm at the Hearing that he did have his own Taxi Service since 2010.

In a letter dated 17th July 2018 the Complainant wrote to the WRC setting out details in relation to all his complaints which had not been provided at the Hearing. This did include some correspondence between the Complainant and the Respondent for the years 2016/2017. This letter was received by the WRC on 1st August 2018. The WRC then forwarded this letter to the Respondent through the normal diplomatic channels. The Respondent did not respond.

FINDINGS AND CONCLUSIONS.

On the uncontested evidence of the Complainant and on the basis of the evidence provided to me at the Hearing and post the Hearing I find as follows –

Preliminary Issue – Time Limits. These complaints were submitted to the WRC on 24th July 2017. Section 41(6) of the Workplace Relations Act 2015 provides as follows – Subject to subsection (8) an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented To the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. Therefore the period covered by the complaints under the Payment of Wages Act, 1991 and the Organisation of Working Time Act, 1997 runs from 25th January 2017 to the termination of the employment by the Complainant on 19th May 2017. Subsection (8) does allow for an extension of time if the Complainant can show the delay, - was due to reasonable cause – There was no request by the Complainant or his legal representative for an extension of time as all the evidence presented to me by the Complainant relates to the years prior to 2017.

The only complaint under these Acts within the Time Limit is the Complainant’s complaint in relatio0n to non-payment of a Bonus, which he described as a payment made on the 13th Month each year, and he is claiming payment of a Bonus of €2680.00. However the Complainant terminated his employment on 19th May 2017 midway through the 2017 year.

CA-00015264-001. I declare this complaint is not well founded as the complaint was submitted outside the Time Limits as set down in Section 41(6) of the Workplace Relations Act, 2015 and the Complainant and his Legal Representatives did not seek an extension of time as provided for under Section 41(8) of the Same Act.

CA-00015264-003. I declare this complaint is not well founded as the complaint was submitted outside the Time Limits as set down in Section 41(6) of the Workplace Relations Act, 2015 and the Complainant and his Legal Representatives did not seek an extension of time as provided for under Section 41(8) of the Same Act.

Unfair Dismissals Act, 1977 – 2015. CA-00015264-005.

The Complainant resigned his employment by letter dated 19th May 2017. In this detailed letter he also outlines the issues which arose for him during the course of his employment, some of which have been presented as complaints to the WRC under the Payment of Wages Act in relation to wages, bonus and expenses. I have examined in detail the evidence presented to me in relation to authorisations for payments of outstanding wages due to local staff. However all of these relate to the years from 2014 to 2016. The only relevant complaint within the period covered by this complaint relates to the payment of a 13th month wages but the Complainant had terminated his employment on 19th May 2017.

Section 1(1) of the Act defines what is commonly described as “constructive dismissal” as follows – (b) “the termination by the employee of his Contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in 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”.

There are essentially two tests that an employee can argue in a complaint of constructive dismissal.

There must be a significant breach of the contract of employment, which shows that the employer no longer intends to abide by one or more elements of the contract of employment and that in such circumstances the employee was justified in tendering his resignation. Firstly the Complainant stated he had not been provided with a written statement of his Contract of Employment by the Respondent. Secondly the Complainant stated he had not been paid his proper wages and evidence was presented for the years 2014/2015 and 2016 that related to all local staff employed. The Complainant tendered his resignation in May 2017 and no evidence was presented to me at the Hearing in relation to whether the Complainant had or had not been paid these alleged outstanding wages for 2014, 2015 and 2016.

I find the Complainant has not established any breach of Contract by the Respondent.

The second defence an Employee can offer is that he must show he acted reasonable in tendering his resignation. I was not provided with any evidence by either the Complainant or his Legal Representative of any complaint the Complainant made to his Employer from 2014 to the date of his resignation in May 2017 in relation to any issued arising in his place of employment.

Therefore I find that the Complainant has not acted in a reasonable manner in terminating his employment.

DECISION. CA-00015264-005.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. In accordance with Section 8(1)(c) of the Act, my findings above and the evidence provided to the Hearing I declare this complaint is not well founded.

Dated:   06/02/19

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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