ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00004364

Parties:

Complaint:

Date of Adjudication Hearing: 07/06/2017 and 17th July 2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Location of Hearing: Room G.05 Lansdowne House

Procedure:

In accordance with 8 of the Unfair Dismissals Acts, 1977 – 2015 andfollowing the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

BACKGROUND.

The Complainant was employed as a Chauffeur with the Respondent from 17th February 2014 until the employment was terminated by the Respondent on 31st May 2016. The Complainant was paid 1000.00 euro gross per fortnight. The Complainant referred a complaint to the Workplace Relations Commission on 3rd August 2016 alleging he had been unfairly dismissed.

Preliminary Issues.

Respondent’s Legal Representation. A Hearing was scheduled for 7th June 2017. Two (named) Solicitors attended the Hearing claiming to represent the Respondent. There was a letter from the Respondent dated 11th October 2017 in which they state that a named former Solicitor had refused to hand over their case File to their new Legal Representative. The Respondent had written to the Law Society to lodge a complaint on 25th September 2017 – copy provided and there was a response from the Law Society dated 2nd October 2017. The Respondent sought an adjournment for the rescheduled Hearing on 11th October 2017 which was agreed. A Hearing was scheduled for the 17th July 2018. The Respondent did not attend the scheduled Hearing on this Date. In the meantime the second named Solicitor of the Respondent by letter dated 4th January 2018 confirmed they no longer represented the Respondent. The Respondent was informed of this scheduled Hearing directly through the normal diplomatic channels.

Jurisdiction. The Respondent by letter dated 27th June 2018 set out their refusal to submit the jurisdiction of the Workplace Relations. They also stated they had not appointed any Attorney or Solicitor to act on their behalf with respect to any complaint, dispute or arbitration before the Commission. The Respondent did not attend the scheduled Hearing on 17th July 2018 to present their case in relation to the issue of Jurisdiction. There were a number of Sworn Affidavits from named employees of the Respondent but none of these attended the scheduled Hearing on 17th 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 that the Complainant has a right to bring proceedings before the Adjudication Officer as he 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.

The Complainant stated that on 11th May 2016 he was contacted by a named official of the Respondent who informed him there was a function in a named Hotel and he was informed he was to transport a named employee from her work location to her house and then to the Hotel where the function was taking place. The Complainant stated that he refused to do this as he was not prepared to collect the named employee from her house but that he was prepared to collect her from her office in the Respondent’s place.

He stated his normal hours of work were from 8am to 5pm over 5 days. He stated that he was requested to give a written response as to why he had refused the assignment of 11th May 2016 which he did on the same date stating that the Respondent was required to give him 24 hours notice of an event taking place after his normal working hours. This event was scheduled for 7pm and he noted his normal finishing time is 5pm.

He stated he was not afforded a right to attend a Disciplinary Hearing but he received a termination letter dated 30th May 2016 terminating his employment with effect from 31st May 2016. He was not afforded a right of appeal of his dismissal.

The Complainant stated that he had been in receipt of Jobseekers Benefit from the Department of Social Protection. He was requested to forward a statement from the Department stating the duration of this claim.

The Complainant stated that he had commenced a Cleaning job on 3rd July 2016. He was requested to forward his P60 from this employment.

The Complainant stated that he commenced employment as a Security Guard in November 2017 and he works 35 hours a week and is paid £350.00 gross per week. He was requested to forward a P60 for the 2017 year.

FINDINGS AND CONCLUSIONS.

On the uncontested evidence of the Complainant I find as follows.-

The Complainant was advised of a complaint made against him by a named employee of the Respondent in relation to an incident on 11th May 2016. He was requested to give a response which he did on the same date i.e. 11th May 2016. There was no evidence of a Disciplinary Hearing being conducted by the Respondent.

The Complainant was issued with a written termination of his employment by letter dated 30th May 2016 to terminate on 31st May 2016. This letter does not afford the Complainant a right of appeal of this dismissal.

The Complainant stated he had been in receipt of Jobseekers Benefit from the Department of Social Protection. He was requested by the Adjudication Officer to forward confirmation of the duration of this claim but he did not do so.

The Complainant stated that he had commenced employment in July 2016 and the Adjudication Officer requested he provide P60/P45 in relation to this employment, but he did not do so.

The Complainant stated that he commenced employment as a Security Guard in November 2017. He was requested to provide a P60 or payslips in relation to this employment, but he did not do so.

I find the Respondent has breached fair procedures and natural justice in contravention of S.I. 146/2000 Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 signed into law by the then Minister for Enterprise, Trade and Employment, Ms Mary Harney on 26th May 2000.

I find the complaint of unfair dismissal is well founded. However the Complainant has failed to show any evidence of mitigation of loss as required by Section 7 (2) of the Act. Accordingly the compensation awarded to the Complainant has to take account of this failure by the Complainant.

Decision:

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, on the uncontested evidence of the Complainant and in view of my findings above I declare this complaint is well founded to pay the Complainant compensation of 4 weeks wages of €2000.

Dated:   18th January 2019

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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