Complainant

Respondent

Anonymised Parties

A Housekeeper

An Embassy

Representatives

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00014261-001

25/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00014261-002

25/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00014261-003

25/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00014261-004

25/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00014261-005

25/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00014261-006

25/09/2017

The complainant was employed by the respondent as a housekeeper/cook from 1st June 2014 until 6th September 2017, when her employment was terminated. She was paid €908.01 net per 2 weeks. She is claiming under the Payment of Wages Act that she is owed wages and bonus payments. She is claiming compensation for breaches of the Organisation of Working Time Act, 1977 regarding daily and weekly rest periods and annual leave   She is also claiming that she was unfairly dismissed.

The respondent is an Embassy and did not attend the hearing invoking immunity from the jurisdiction of the Workplace Relations Commission.

The complainant said that she had been brought from her home country to Ireland to work as a housekeeper in the residence of the Ambassador of that country. She said that she was regarded as "local staff" and paid PRSI and tax as an Irish worker. She was given a contract of employment that was in line with Irish employment legislation. She said that she was not diplomatic staff.

The complainant worked for the Ambassador from 2014 until the Ambassador returned to her home country in August 2015. She said that the duties assigned to her were to cook and clean, look after the house generally (and the gardens) and to do whatever the Ambassador required. There were frequently parties that she would cater for and was effectively on duty 24 hours per day. When the complainant started there were five staff members working in the residence, but these staff gradually left.

When the Ambassador departed in August 2015, there was no replacement put in place until 2017. In the meantime, the complainant said that she continued to work as housekeeper and the house was used as a reception place for visiting VIPs. She worked all the time, and never left the residence and grounds. She had a contract of employment and was granted a new revised contract in 2016. She said that she was given a letter dated the 7th of June 2016, which stated that her employment contract had been renewed for a further year. However, when the new Ambassador was appointed in September she was dismissed with immediate effect.

The respondent did not attend the hearing. In a response letter dated the 18th June 2018, refusing to submit to the jurisdiction of the WRC, the respondent submitted that the complainant and the Embassy are fully clothed with the privileges and immunities accorded to Foreign Embassies, Envoys and Consular Officers under International Law. It submitted that the Embassy and its activities and its relationship are outside the jurisdictional sphere or authority of the National Courts or Tribunals. The Vienna Convention on Diplomatic Relations of 1961 specifically supports their position as does the Vienna Convention on Consular Relations (1963).

On this basis the respondent declined to volunteer any evidence, statements or submit to the jurisdiction of the WRC.  

The named respondent submits that it is protected by the Vienna Convention on Diplomatic Relations 1961 and has invoked immunity from the jurisdiction of the WRC. Therefore, the first matter I must decide is whether the complainant can pursue her claims before the WRC. The Vienna Convention which was brought into law by the Diplomatic Relations and Immunities Act 1967, provides for diplomatic immunity. Sovereign/State immunity is the immunity which is claimed by the respondent in the case herein.  

Article 29.3 of the Irish Constitution recognises the principle of the sovereign/state, it states “Ireland accepts generally recognised principles of international law as its rule of conduct in its relations with other States.” The leading authority on sovereign/state immunity is the Supreme Court judgment in the case of Government of Canada v The Employment Appeals Tribunal and Brian Burke [1992] 2 I.R. 485.

The case concerned a chauffeur employed by the Canadian Embassy. He was an Irish national and did not enjoy diplomatic privileges. He was dismissed from the employment and brought a claim under the Unfair Dismissals Act 1977 to the Employment Appeals Tribunal. The Government of Canada submitted that the EAT had no jurisdiction to hear the claim since the respondent was a sovereign authority and immune from suit in a foreign court or tribunal. The Employment Appeals Tribunal refused to accept that its jurisdiction was usurped by the Government of Canada’s right to sovereign immunity and went on to hear the application and made an award in favour of the claimant in the absence of the respondent. The decision was challenged by way of judicial review on the basis that the Tribunal had no jurisdiction to deal with the matter. Although the challenge was unsuccessful in the High Court, on appeal the Supreme Court found in favour of the Government of Canada. In its judgment, the SC confirmed that the general principles of international law had developed and had departed from the doctrine of absolute state immunity, in favour of much more restrictive view, which, nonetheless, allowed for state immunity in various circumstances.

O’Flaherty J. stated: “The doctrine flourished at a time when a sovereign state was concerned only with the conduct of its armed forces, foreign affairs and the operation of its currency. Now with so many states engaged in the business of trade, direct or indirect, the rule of absolute immunity is not appropriate to such conditions…. However, if the activity called into question truly touches the actual business or policy of the foreign government then immunity should still be accorded to such activity”.

O’Flaherty J. said the question was “Into which category does Mr. Burke’s claim fall, public or private?” and went on to hold “The employment of a chauffeur at the Canadian Embassy is clearly not a commercial contract in the ordinary sense of the word; it is a contract of service. …. I believe that the element of trust and confidentiality that is reposed in the driver of an embassy car creates a bond with his employers that has the effect of involving him in the employing government’s public business organisation and interests. Accordingly, I hold that the doctrine of restrictive state immunity applies in this case.”.

EU Law

Regulation No. 44/2001 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 considering the issue of sovereign immunity in the case of Mahamdia v People’s Democratic Republic of Algeria, Case C-154/11, in the context of Council Regulation (EC) No 44/2001 concerning a driver at the Embassy, stated:

“In the dispute in the main proceedings, it should be recalled that the functions of an embassy, as stated in Article 3 of the Vienna Convention on Diplomatic relations, consists essentially in representing 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.”

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 state:

“Consequently, in view of the content of that principle of customary international law concerning the immunity of States from jurisdiction, it must be considered that it does not preclude the application of Regulation No 44/2001 in a dispute, such as that in the main proceedings, in which an employee seeks compensation and contests the termination of a contract of employment concluded by him with a State, where the court seised finds that the functions carried out by that employee do not fall within the exercise of public powers or where the proceedings are not likely to interfere with the security interests of the State. On the basis of that finding, the court seised of a dispute such as that in the main proceedings may also consider that that dispute falls within the material scope of Regulation No 44/2001.”

The EAT applied the CJEU jurisprudence in the 2 cases cited below and held that an ancillary post such as a cleaner or nanny/domestic help are not public functions and are not posts which fall within the restricted sovereign immunity as set out in the Government of Canada case.  

In Adan v Embassy of the Republic of Kenya (RP2775/2011, UD2163/2011, MN2199/2011, WT882/2011) The Employment Appeals Tribunal considered in some detail the judgements in the Government of Canada v Employment Appeals Tribunal case cited above and the ECJ case of Ahmed Mahamdia v Peoples Democratic Republic of Algeria C-154/11. The Tribunal found that it had jurisdiction as it was “satisfied that the claimant’s functions as a cleaner did not fall ‘within the restricted form of immunity’ as considered in the Canadian Embassy case nor did her position involve her ‘within the exercise of public powers’ according to the test set out in ‘Mahamdia’.”  

In Calderon v Ors. v Embassy of United Arb Emirates (UD1219/2013, UD 1220/2013, UD1221/2013) the Employment Appeals Tribunal stated: “The Tribunal is satisfied that all three appellants’ functions as a Nanny/Domestic Help in the respondents (sic) 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 [Ahmed Mahamdia v Peoples’ Democratic Republic of Algeria Case C-154/11].”

The European Court of Human Rights (ECtHR) considered sovereign immunity in the case of Cudak v Lithuania (2010) 51 EHRR15 concerning a Lithuanian national employed as a switchboard operator in the Polish embassy. She brought an action following her dismissal and the embassy claimed sovereign immunity and the Lithuanian court declined jurisdiction.   The ECtHR, in holding that sovereign immunity did not apply to the post, stated at paragraph 70:

“The Court observes in particular that the applicant was a switchboard operator at the Polish Embassy whose main duties were: recording international conversations, typing, sending and receiving faxes, photocopying documents, providing information and assisting with the organisation of certain events. Neither the Lithuanian Supreme Court nor the respondent Government have shown how these duties could objectively have been related to the sovereign interests of the Polish Government. Whilst the schedule to the employment contract stated that the applicant could have been called upon to do other work at the request of the head of mission, it does not appear from the case file – nor have the Government provided any details in this connection – that she actually performed any functions related to the exercise of sovereignty by the Polish State.”

Following the ratification by Ireland of the ILO Convention on Decent Work for Domestic Workers 2011 No 189, the Department of Foreign Affairs issued guidelines in 2014 entitled “Guidelines Relating to the Employment of Private Domestic Employees by Accredited Members of the Mission.”

Paragraph 4 states:

“Members of missions wishing to employ private domestic employees are expected to

demonstrate respect for Irish laws and good employment practice. An agreed undertaking of

the terms and conditions of employment, in line with Irish employment law, signed by both

the employer and the employee is required prior to arrival in Ireland”.

While these guidelines are not legally enforceable and are not applicable to a domestic worker employed directly by the Embassy of the State they are nevertheless helpful in considering the case herein. The complainant was employed initially by the Ambassador in her residence as a housekeeper. She was provided with terms and conditions of employment which complied with the template attached to the above guidelines and was signed by both the complainant and the Ambassador on the 22nd January 2015. This contract of employment provided for terms and conditions of employment in compliance with Irish employment law and the employer agreed to be subject to inspections from the Workplace Relations. She was paid in euro and she paid tax and PRSI to the Irish state.

The Ambassador was recalled in 2015, but the complainant continued in employment without a break.   On the 24th March she was given a letter by the Embassy to say that her application for employment was successful and that she was employed as a housekeeper with effect from 1st March 2016, subject to a 6-month probationary period. In a letter dated 8th December 2016, seeking a work permit for the complainant, the Embassy stated that the complainant was directed to remain at the at the Ambassador’s residence after the departure of the Ambassador and in another letter to the Irish Naturalisation and Immigration Service, the Embassy confirmed that she was employed now by the Embassy of the Named Country as a housekeeper in the Ambassador’s residence. In December 2016, the complainant was required to sign a document in relation to her conditions of employment entitled “Conditions of Service for Local Staff”. These conditions of employment covered domestic staff including the complainant, receptionists, clerical chauffeurs, security, handyman, and ground staff, However, the same conditions continued in relation to her pay and the contract did not state that Irish employment law no longer applied.

In deciding whether restrictive sovereign/state immunity applies, I have taken into consideration all of the above jurisprudence and the principles as set out by the Supreme Court in the Government of Canada case. It is clear therefore that the following must be established:

Into which category does the complainant’s claim fall, public or private? The complainant was employed as a housekeeper in a private contract.

Is it a commercial contract, or is it a contract of service? Her contract was a contract of service and not for commercial purposes. She was employed as a housekeeper in the residence of the Ambassador.

Is it the nature of the complainant’s employment such that it touches upon the actual business or policy of the sovereign state’s Government?

I am not satisfied that the domestic duties a housekeeper such as cleaning, cooking, serving food and answering the door, in an Ambassador’s residence could be in any way be construed as duties related to the business or policy of a state.

I note that the EAT followed the CJEU decision in the case of Mahamdia v People’ Democratic Republic of Algeria C-154/11 in Adan and Calderon & Ors. cited above and held that the functions of a cleaner or a nanny/domestic help did not fall ‘within the restricted form of state immunity’ as set out in the Supreme Court judgment in the Canadian Embassy case. The CJEU said in that case it is for the national courts to decide in applying Regulation 18 of the EU 44/2001 if the functions exercised were public powers and if they were likely to interfere with the security of the State.

In applying the Mahamdia judgment to the case herein, and in view of my findings above, I am satisfied that the complainant did not exercise any public function and the subject matter of these proceedings would not interfere with the security interests of the named State.

For all of the above reasons, I find that the doctrine of restricted sovereign/state immunity does not apply. I find I have jurisdiction to hear the complaints.  

I find that I have jurisdiction to hear the complaint.

The complainant’s case is a set out above. She said that she was dismissed without notice for no good reason when a new Ambassador was appointed.

She said that her contract of employment with the respondent was renewed for a further year on 7th June 2017. A new Ambassador was appointed in August and without any warning she was given a letter of dismissal on the 6th of September 2017 and a further letter on the 7th of September ordering her to vacate the Ambassador's residence. She was subsequently locked out of the house. She said this occurred after the Ambassador called the Gardaí and asked them to eject her and they refused to do so. The complainant said she was homeless after she was locked out.

The respondent did not attend the hearing or offer any evidence.

Unfair Dismissals Act

Section 6(1) states

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

I note that the complainant was dismissed by letter dated the 6th of September 2017 and she was given no reason for the dismissal.   The letter noted that her employer, the former Ambassador, was recalled in August 2015. However, the complainant was not employed by the former Ambassador at the time of her dismissal, as it is clear from the latter of the 24th of March 2016 that she was now employed by the respondent. It was confirmed in letters to the Irish Naturalisation and Immigration Service and Work Permits Section of the Department of Jobs, Enterprise & Innovation that the respondent was now the complainant’s employer. I note that in a letter dated the 7th June 2017, the respondent renewed the complainant’s employment contract for a further year.

The respondent did not attend the hearing for the above stated reasons. In accordance with section 6 cited above, it is for the employer to establish that there were substantial grounds justifying the dismissal. I note that the complainant was dismissed by the respondent without any stated reason in the letter of dismissal. I note in the letter renewing the complainant’s contract of employment for a further year stated that her continuing in the employment was dependant on satisfactory performance and compliance with the conditions of service. There was no evidence that the complainant’s performance was not satisfactory or that she was in breach of any of her conditions of employment.

I note that the complainant is a national of the respondent’s country and she was brought here initially by the former Ambassador to work for her as a live-in housekeeper and subsequently she was employed in the same position by the respondent. The manner of the complainant’s dismissal and the treatment of her and the procedures adopted in removing her from her live-in accommodation in the respondent’s residence showed appalling disregard for her rights as an employee. One of the important roles of an embassy is to extend protection and assistance to their citizens abroad. I find it is incredible that this employee and citizen of the respondent country could be dismissed in such a manner and rendered homeless in Ireland in what to her is a foreign country.

In circumstances where a worker is being dismissed for whatever reason there is an obligation on an employer to apply fair procedures and natural justice. For all of the above reasons, I am satisfied that the dismissal was both substantially and procedurally unfair.

I note that the complainant was dismissed about 3 months into a one year contract of employment. I find she had a financial loss for 20 weeks and I award her €18,160 net compensation.

I find that the dismissal was both substantially and procedurally unfair, and I award the complainant €18,160 net compensation for the financial loss.

The complainant said that she was paid very irregularly. She was due to be paid every two weeks, but this did not happen. She said that she was not paid her wages for the two week period from 25th March to the 7th April 2017 and also she was not paid for the last 11 weeks of her employment. She is also claiming a bonus payment which is equal to an extra month’s salary per year. The complainant said that she was paid the bonus for 2016 and she is claiming the bonus for 2014 2015 and 2017.

The respondent did not attend the hearing or offer any evidence.

Payment of Wages Act

The complainant was paid by electronic transfer to her bank. I am satisfied having examined the evidence submitted that the complainant was not paid her wages from 25th March to 7th April 2017 and also from the 30th June 2017 until the 15th of September 2017. Therefore, I find that the complaint is well founded. I award her 13 weeks wages which amounts to €5,902 net.

I note from the records submitted that the bonus for 2016 was paid in June 2017. The complainant’s employment ended in September 2017 and before her entitlement to the bonus for 2017 had not accrued. The claim for a bonus in respect of 2015 has been referred outside the statutory 6 months for making a complaint. Therefore, I have no jurisdiction in the matter.

I find that the complaint in respect of wages is well founded, and I award the complainant €5,902 net compensation.

I find that that I have no jurisdiction in respect of the complaints about the bonus.

The complainant alleges that the respondent did not give her paid holidays during the course of the employment. She said that she took 2 weeks off in 2015 but was not paid.

The respondent did not attend the hearing.

The Organisation of Working Time Act Holidays

Section 23 provides:

“Compensation on cesser of employment

(1)(a) Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee, shall as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or he would have received had he or she been granted that annual leave.

(b) In this subsection—

“relevant period” means—

(i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year,

(ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year—

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,”

Section 2 “A “leave year” means a year beginning on any first day of April;”

There is no evidence that the complainant received payment in respect of accrued annual leave on the cessation of her employment.

Section 27 (3) provides for redress as follows:

“ A decision of an adjudication officer under section 41 of the Workplace

Relations Act 2015 in relation to a complaint of a contravention of a relevant provision

shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount

(if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”

In calculating the accrued annual leave commencing on 1st April 2017, in accordance with the leave year as determined by the Act and ending on the 15th September 2017 (the date of dismissal), I find that the complainant has an entitlement to compensation in respect of annual leave.

As the complainant’s employment ended during the first 6 months of the statutory leave year (1st April 2017 to 30th March 2018) that is on 15th September 2017, I am satisfied that the complainant has an entitlement to compensation for accrued leave in that year. I find that this complaint is well founded.

I note that Section 27(3)(c) cited above provides for compensation not exceeding 2 years. Therefore, I am of the view given the serious breaches of the Act that an award of compensation in the amount of €6,500 is just an equitable in all the circumstances.

The claims in respect of the 2014/2015 and 2015/2016 leave years were referred outside the statutory 6-month time limit for taking a complaint and I have no jurisdiction in the matter.

I find that the complaint is well founded, and I award the complainant compensation in the amount of €6,500.

The complainant said that she worked every public holiday and was not given extra remuneration or a paid day off in lieu.

The respondent did not attend the hearing or offer any evidence on the matter.

Public Holidays

Given the 6 month statutory time limit for taking a complaint, and taking the 6 month period preceding the 25th September 2017 (the date of referral) into account 4 public holidays occurred in this period.

I am satisfied that the complainant is entitled to receive compensation for four public holidays that fell in the six months prior to her termination (namely: 17 April 2017, 1 May 2017 and 5 June 2017 and the 7th August 2017). The complainant was paid €908.01 net per 2 weeks and 4 days’ pay in respect of the public holidays amounts to €363.20 net.

I find that the complaint is well founded, and I award the complainant compensation in the amount of €363.20 net.

The complainant said that as she worked as housekeeper/cook and lived in in the respondent’s residence. She said that she was required to be on duty 7 days per week and she never had any free time.  She said that she was never allowed any time away from work and never had a day off in the week as there were always visitors or diplomats staying and she had to cook for them and do housework over the 7 days.

The respondent did not attend the hearing or offer any evidence on the matter.

Section 13 of the Act provides:

“Weekly rest periods”

13.—(1) In this section “daily rest period” means a rest period referred to in section 11.

(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.”

I found the evidence of the complainant very credible. I am satisfied that the respondent contravened Section 13 of the Act by requiring the complainant to attend work 7 days per week and she was not provided with weekly rest periods. I find that the complaint is well founded.

I note that Section 27(3)(c) cited above provides for compensation not exceeding 2 years for breaches of the Act. Given the serious and ongoing breaches of the Act throughout the complainant’s employment, an award of compensation in the amount of €3,500 is appropriate in the circumstances.

I find that the complaint is well founded, and I award the complainant compensation in the amount of €3,500 for the breach of the Act.

The complainant said that her hours of work were supposed to be from 8am to 5pm. However, she was usually required to start work at 6am and she rarely finish work at 5pm. She said that there were always guests staying, and she was required to answer the door and cook late into the evening. She was also required to rise early to cook breakfast for the guests often before 6am.   She said that even if she had free time she was required to remain in the house to look after it.

The respondent did not attend the hearing or offer any evidence on the matter.

Section 11 of the Organisation of Working Time Act, 1997 provides:

“11.—An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.”

I found the evidence of the complainant very credible. I am satisfied that the complainant was not given daily rest periods in accordance with Section 11. I note that Section 27(3)(c) of the Act cited above provides for compensation not exceeding 2 years for breaches of the Act. Given the serious and ongoing breaches of the Act throughout the complainant’s employment, an award of compensation in the amount of €3,500 is appropriate in the circumstances.

I find that the complaint is well founded, and I award the complainant compensation in the amount of €3,500 for the breach of the Act.

Sovereign/State immunity, Unfair Dismissals Act, Payment of Wages Act, non- payment of wages, Organisation of Working Time Act, holidays, public holidays, rest periods.