Complainant

Respondent

Parties

Alessandra  Quinn

Embassy Of Brazil

Representatives

Gerard I. Lambe Gerard I. Lambe Solicitor

Gerald Kean Keans Solicitors

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-00046978-001

04/11/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00046978-002

04/11/2021

The Complainant commenced employment with the Respondent, the Embassy of Brazil, in November 2001.  Her employment ended on 27 July 2021. The Complainant was paid €3,113.18 monthly and worked 40 hours per week as a housekeeper. Complaints under the Unfair Dismissals Act and the Redundancy Payments Act were received by the WRC on 4 November 2021. An in-person hearing took place on 9 August 2022.

The Respondent provided a detailed written submission.

By way of background the Respondent explained that the Complainant had moved to Ireland in 2001 as part of the household of the Ambassador with whom she worked for from Brazil. She started to work as a housekeeper of the Residence of the Embassy of Brazil in Dublin. In that condition, her visa in Ireland was issued through the Department of Foreign Affairs.

As part of the household of the Ambassador, the Complainant lived at the Residence. At that time the Embassy was in a large property, that comprised a mews house equipped with two bedrooms, kitchen and bathrooms.  The Complainant shared the mews house with the Embassy’s cook. The first employment contract signed between the Respondent and the Complainant reflects this reality through the “room and board” clause.  No other contract signed by the Respondent has ever had such a room and board clause.

The Respondent submits that after some years in Ireland the Complainant married an Irish Citizen and they took residence in another place.  Her marriage altered her visa status, which ceased to be connected to the Respondent.  For convenience the Complainant kept the possibility to use the mews house for overnight stays during the week. However, the “room and board” clause of her contract was not changed to reflect that new circumstance.

The Respondent submits that one of the reasons the Complainant kept the room at the mews house was to enable her to take up part-time jobs as housekeeper in nearby houses, after her working hours in the Embassy Residence.

In early November 2020, the Complainant was informed that as a result of the termination of the lease agreement the Respondent had for the existing property, (due to administrative and budgetary constraints), the Embassy would probably be moving to a smaller premises and the provision of a room would no longer be available to the Complainant.

In March 2021, the Embassy moved to another location, to occupy a house that was rented for a price substantially lower than the previous property. As the new residence did not have enough space to house employees, the Respondent proposed to both the Embassy cook and the Complainant to update their employment contracts, with the removal of the room clause (board was secured by the payment of an extra 20% over their salary as a food allowance).

As a result, the cook decided to retire, and agreement was reached on the termination of their contract and the payment of a lumps sum.  The cook moved back to Brazil in July 2021, and a new cook was hired the same month.

The Respondent submits that it continued liaising with the Complainant in relation to these changes and made a good faith proposal to increase her salary to cover any new expenses associated with the extra daily commute from her home to the premises of the new Embassy, which was within commuting distance of her home. The proposed salary increase was reasonable and corresponded to the maximum admissible under budgetary rules and the salary scheme and policy governing the contracts of local hired staff.  The Embassy also proposed a friendly termination of the contract, with the payment of a lumps sum.

The Respondent submits that it made all possible efforts to resolve the matter to the mutual satisfaction of both parties.  The Complainant was an employee who had a long service and was highly regarded and well-liked by the Ambassadors who were her bosses and by colleagues at the Embassy. Unfortunately, the Complainant did not accept the Respondent’s offers and despite on-going discussions, it was not possible to reach a mutual agreement to update the contract or to terminate the employment contract.  In the circumstances, unfortunately, the Respondent had no alternative but to terminate her employment contract.

A written notice was served on 5 May 2021, and the Complainant was employed as normal until the termination date of 27 July 2021.

The Respondent submits that the Complainant was always treated with respect and that genuine efforts were made to reach agreement between the parties before the matter was finalised.

The Complaint submits that she commenced working for the Respondent in 2001.  At all times her remuneration package included room and board, specified to include, “a private room, equipped with heating, bathroom, kitchen, a common living room and dining room, TV and telephone at no charge except for private long-distance call”, in a mews in the Ambassador’s home.  This accommodation was a very valuable and important benefit to the Complainant. 

In November 2020, the Complainant was informed that the Ambassador was moving house and that her room would no longer be available to her.  The loss of such a benefit was very significant; it meant she had to live out, there was a commute time and additional utility and transport expenses.  The Complainant sought an increase to her remuneration to compensate for her loss, but no adequate proposal was forthcoming.  Consequently, she was informed by letter of 5 May 2021, that, as she had not accepted the Respondent’s offer to cover the new expenses associated commute, her employment was to terminate on 27 July 2021. The Complainant was paid 12 worked her notice and was paid her accrued holiday pay.

The Complainant felt aggrieved at the way her employment ended though she does not blame any one individual.

I have considered this matter carefully.

The facts in this case are not in dispute.

This is an unfortunate situation as it is clear the Complainant was a highly respected employee, and the Respondent did not want to see her leave her post.

I accept that after the decision to move location was made, the Respondent put forward good faith proposals to address the Complainant’s general concerns; her additional travel expenses and the loss of a substantial benefit she had enjoyed for many years, namely her accommodation. The Respondent was constrained in what it could do under budgetary rules and the salary scheme and policy governing the contracts of local hired staff. Regrettably, no agreement was reached between the parties.

The question that arises here is whether a dismissal was justified in the circumstances outlined above.

In general, the Acts provide that every dismissal of an employee will be presumed to have been unfair unless the employer can show substantial grounds justifying the dismissal.

To justify a dismissal, an employer must show that it either resulted from one of the following causes:

(a) the capability, competence of qualifications of the employee for the work they were employed to do;

(b) the employees conduct;

(c) redundancy;

(d) the fact that the continuation of the employment would contravene another statutory requirement;

Or that there were other substantial grounds for the dismissal.

In this instant case, I can find nothing that has been put forward by the Respondent that justifies the dismissal of the Complainant.

Even if some justification for the dismissal could be found, an employer is bound to show not only had they substantial grounds justifying the dismissal but also that they followed fair and proper procedures before dismissal.  In this case I find that there was a near absence of procedures, therefore I find the dismissal to have been procedurally unfair also.

I find the Complaint is well founded and the compensation is warranted. Taking into account the fact that the Complainant found alternative work seven months after her dismissal I find an amount equivalent to seven months’ pay is warranted.

The Complainant was unfairly dismissed.  I award the Complainant €21,793.

I find this was not a redundancy situation as the Complainant’s position was filled on the termination of her employment.

The complaint is not well founded. I disallow the Complainant’s appeal.

Justification, procedures.