Complainant

Respondent

Anonymised Parties

A Complainant

A Government Department

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00019982-001

24/06/2018

The Complainant was engaged in an Irish embassy abroad and after ten years her employment was terminated by reason of a redundancy type process. The Complainant rejects this proposition and says she was dismissed in circumstances where her Employer wanted her gone as there was disharmony within the workplace.

The Complainant was not represented, and I allowed her some latitude in terms of the presentation of her case. The Complainant herein worked for ten years with the Irish Embassy in Washington DC. The Complainant gave evidence that she was subjected to a systematic campaign of bullying and degradation at the hands of two of her in-house colleagues. I allowed the Complainant to give her account of the nature of the treatment that she says she was subjected to and the impact that the behaviour has had on her. The Complainant gave evidence that her Employer was on notice of the said treatment but that she did not get the level of support that she was looking for. I accept that the Complainant perceived herself to be the target of a campaign of behaviour which undermined her performance, her confidence and her self-esteem.

Counsel for the Respondent strenuously objected to the decision to allow the Complainant to detail her treatment as she perceived it to have been. For reasons which I accept, the Respondent did not make provision to contradict this aspect of the Complainant’s complaint although I am advised that a mediation process was provided for where inter-personal issues had arisen, but that no Formal Grievance was ever raised by the Complainant.

The Respondent provided me with a comprehensive legal submission and the Respondent has asked that I deal with two matters by way of preliminary issue.

Firstly, the Respondent has asked that I consider the applicable time limits and, in this regard, the Workplace Relations Act specifies at Section 41 (6) that (subject to s.s.8) an Adjudication Officer shall not entertain a complaint referred to the said Adjudication Officer after the expiration of the period of six months beginning on the date of the contravention to which the Complaint relates.

Section 41 (8) specifies that the Adjudication Officer may entertain a Complaint or dispute to which section 41 applies after the expiration of the six month period referred to in ss. (6) and (7) – though not later than a further six months after the initial expiration as the case may be - if the Adjudication Officer is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

Secondly, the Respondent has asked that I find that the Complainant has nominated the incorrect Respondent/Employer herein.

The Complainant herein worked for ten years with the Irish Embassy in Washington DC. The Complainant, an Irish Citizen, presented for job interview in the United States and was eligible for employment by reason of her being in possession of a Donnelly Visa. The Complainant was provided with a Contract of Employment (from the Embassy of Ireland on Massachusetts Avenue) on the commencement of her employment which confirms her appointment as “Administrative Assistant at the Embassy of Ireland in Washington”. The position is not intended to “...establish status in the Irish Civil Service”. Lastly the Contract confirms “...the appointment may be terminated at any time by either side in accordance with the Minimum Notice under local Employment Law”.

The Respondent states that the Contract of Employment does not confer a contractual relationship between the Complainant and the department of Foreign Affairs and I am told that the Complainant was employed by the entity that is the Irish Embassy in Washington and that she was employed locally, paid locally and subject to tax and laws locally. Positions such as this one are recruited locally and exist in every Irish Embassy around the world and are not intended to confer some sort of quasi-Irish Contract of Employment capable of being subject to Irish legislation. I am told that the fact that the Complainant happens to have been an Irish Citizen does not invalidate the premise that the Complainant was recruited in America and subject to American Laws.

The Complainant was advised that her position was being made redundant arising out of re-organisations within the Embassy and by reason of a more streamlined passport application process. The Employment terminated on the 28th of July 2017 and the Complainant was provided with an enhanced severance package. I note that the Complainant was invited to consult with an Attorney prior to executing the General Release and Agreement which was part of the severance process.

Regarding the issue of Delay and Reasonable Cause:

The Labour Court, in Cementation Skanska v Carroll DWT0338 28/10/2003, considered the issue of “reasonable cause” in the context of a similar provision to S.41(8) contained in the Organisation of Working Time Act, 1997 Section 27(5):

“Not withstanding subsection (4) a Rights Commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 12 months of such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause”

The Labour Court stated:

“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford and excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been to reasonable cause relied upon.   Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

I have carefully considered the two preliminary issues which have been presented and opened to me by the Respondent. I have heard the Complainant’s responses and have further allowed the Complainant to open some of what she perceives to be the backdrop to the termination of this employment.

On balance I find I am inclined to accept the Respondent argument that the incorrect Respondent has been named. There is no evidence to support the contention that the Complainant was ever intended to be recruited by the Department nor did she ever set herself up for that recognition. The Complainant herein was employed by the Irish Embassy situate in Washington and was at all times subject to a Contract of Employment governed by the laws of that jurisdiction. I do not know if the Complainant was subjected to a process of Unfair selection for Redundancy and if she was then her remedy lay locally and not in Ireland.

Regarding the issue of delay, I am not satisfied that the failure to present the complaint within the initial six-month period was due to reasonable cause and in any event the question is moot in circumstances where I have no jurisdiction to deal with any complaints arising out of this American Contract of Employment.

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

CA-00019982-001

The Complainant’s complaint of Unfair Dismissal fails.