Complainant

Respondent

Parties

Adrian  Taranu

Embassy Of India, Dublin

Representatives

Mr Eoin O’Connor BL instructed by Richard Bowman, Bowman McCabe Solicitors

 Did not attend.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00053446-001

27/10/2022

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

CA-00053446-002

27/10/2022

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

CA-00053446-003

27/10/2022

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

CA-00053446-004

27/10/2022

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

CA-00053446-005

27/10/2022

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

CA-00053446-006

27/10/2022

The complainant is employed by the Embassy of India, his employment commenced on 3rd February 2020, he remains in this employment. The Complainant is employed as a chauffeur.

This complaint was received by the Workplace Relations Commission on 27th October 2022.

The Complainant has six complaints, all under the Organisation of Working Time Act, 1997. These complaints are as follows:

CA – 00053446 – 001 – the Complainant alleges that he did not receive his daily rest period.

CA – 00053446 – 002 – the Complainant alleges that he did not receive his breaks.

CA – 00053446 – 003 – the Complainant alleges that he did not receive his weekly rest periods.

CA – 00053446 – 004 – the Complainant alleges that he had to work more than the maximum permitted number of hours.

CA – 00053446 – 005 – the Complainant alleges that he did not receive his paid holiday / annual leave entitlement.

CA – 00053446 – 006 – the Complainant alleges that he did not receive his public holiday entitlements.

CA – 00053446 – 001

Section 11 of the Organisation of Working Time Act 1997 (as amended) ('the Act') states: 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.

In relation to the leave entitlement, the Complainant frequently worked longer hours than are set out in his contract and therefore is not receiving an 11-hour consecutive rest break between his shifts. On the following dates, he finished work late and was required to start working again without receiving an 11-hour rest break in breach of section 11 of the Act.

·       On the 17th October 2022 I started at 11:00 and I finished in or around 23:00 hrs and started work again the following morning at 08:30.

·       From the 17th October 2022 I worked seven consecutive days without a day off.

·       On the 23rd October 2022 I stated at 17:00 hrs and I finished in or around 12:00 am.

·       On the 7th November 2022 | started at 15:00 hrs and I finished in or around 22:30 and started work the following day at 08:30.

·       On the 16th November 2022 I started at 08:30 and finished in or around 22:00 and started work the following day at 08:00 and finished at in or around 23:00 and commenced work again on the 18th November 2022 at 0:800 and finished at 17:30.

CA – 00053446 – 002

Section 12 of the Act states:

(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

The Complainant frequently did not receive his statutory breaks during the day as seen above. The complainant no longer has access to the logbook and as a result of same is unable to cite further examples.

CA – 00053446 – 003

The Complainant alleges that he did not receive his weekly rest periods. There are no particulars of this contained in his submission.

CA – 00053446 – 004 – the Complainant claims he had to work more than the maximum permitted number of hours. There are no particulars of this contained in his submission.

CA – 00053446 – 005.

Section 19 of the Act provides that an employee shall be entitled to paid annual leave equal to 4 working weeks in a leave year in which he or she works at least 1,365 hours. Section 19(6) of the Act further provides that a 'working week' shall be construed as references to the number of days that the employee concerned usually works in a week.

As the Complainant works Monday to Friday, that is his 'working week', and therefore he is entitled for four working weeks holidays and weekends and public holidays are separate to this leave entitlement. However, pursuant to the Complainant's contract, his annual leave is calculated differently as can be seen in Annex at Appendix 5, where it states:

21 days after each completed calendar year of service commencing on 1 January.

In computing the length of period of absence on leave, intervening Sundays,

Saturdays and other holidays will also be treated as leave.

Therefore, the annual leave that the Respondent purports to grant to the Complainant is  21 days simpliciter as it includes weekends in its calculation, and not the 4 working weeks that he is statutorily entitled to receive. This is in breach of section 19 of the Act.

CA – 00053446 – 006.

Section 21 of the 1997 Act provides that in respect of a public holiday, an employee is entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month that day.,

 (c) an additional day of annual leave,

(d) an additional day's pay.

The public holiday entitlement is separate to any annual leave entitlement. The Complainant has not received his entitlements pursuant to section 21. The complainant is only entitled to public holidays in India. The complaint requested time off on Sundays in accordance with his Orthodox religion and to care for his son as a single father but this was refused.

SOVEREIGN IMMUNITY

It is anticipated that the Respondent will invoke sovereign immunity and argue that the

Workplace Relations Commission does not have jurisdiction to hear this complaint.

·       As Fennelly has noted at [7.108] of International Law in the Irish Legal System, (Round Hall 2014):

As Ireland has not ratified the either the Council of Europe [*European Convention

on State Immunity] or UN Convention [*United Nations Convention on the

Jurisdictional Immunities of States and Their Property], or enacted domestic

legislation on state immunity, the rules on state immunity must continue to be

derived from the rules of customary international law. In identifying the relevant

rules, the Irish authorities—and, in particular, the Irish courts-must therefore have

regard to the general practice of states. In approaching this task, the UN

Convention, its preparatory material, and the legislation of other states, will serve

as valuable resources. The courts will also undoubtedly be influenced by the

approach of other national and international courts, including the approach of the

European Court of Human Rights and the Court of Justice of the European Union.

However, because the rules of customary international law by their nature present

uncertainties and because these rules, at this time and in this field, are in flux, the

absence of Irish legislation makes it difficult to provide clear guidance on the scope

and limits of state immunity in Irish law.

·       Article 5 of the European Convention on State Immunity precludes a state claiming immunity if the dispute concerns a contract of employment entered into between the state and an employee employed locally.

·       Article 11(1) of the United Nations Convention on the Jurisdictional Immunities of States and Their Property provides:

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 or to be performed, in whole or in part,

in the territory of that other State.

·       Article 11(2) provides an exemption if the 'the employee has been recruited to perform particular functions in the exercise of governmental authority'.

·       The Vienna Convention on Diplomatic Relations is given domestic effect through the Diplomatic Relations and Immunities Act, 1967. This reflects Article 23(2) of the Vienna Convention on Diplomatic Relations. Article 23 provides:

1. The sending State and the head of the mission shall be exempt from all national, regional or municipal dues and taxes in respect of the premises of the mission, whether owned or leased, other than such as represent payment for specific services rendered.

2. The exemption from taxation referred to in this Article shall not apply to such dues and taxes payable under the law of the receiving State by persons contracting with the sending State or the head of the mission.

·       Article 33 states:

1. Subject to the provisions of paragraph 3 of this Article, a diplomatic agent shall with respect to services rendered for the sending State be exempt from social security provisions which may be in force in the receiving State.

2. The exemption provided for in paragraph 1 of this Article shall also apply to private servants who are in the sole employ of a diplomatic agent, on condition:

(a) that they are not nationals of or permanently resident in the receiving State; and

(b) that they are covered by the social security provisions which may be in force in the sending State or a third State.

3. A diplomatic agent who employs persons to whom the exemption provided for in paragraph 2 of this Article does not apply shall observe the obligations which the social security provisions of the receiving State impose upon employers.

·       Further, Article 34 states: 'A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or municipal'.

·       The effect of the Vienna Convention is to provide for certain immunities for diplomatic agents. As, the Complainant is subject to income tax and other statutory deductions, it is clear that he is not a diplomatic agent and is subject to Irish law in the normal way.

·       In Government of Canada v Employment Appeals Tribunal [1992] 2 IR 484 the Supreme Court considered the case of a driver who claimed he had been unfairly dismissed by the Canadian embassy. The Supreme Court held that the embassy could plead sovereign immunity. However, recent caselaw suggests a more restricted of view of sovereign immunity. The European Court of Human Rights has examined the sovereign immunity exception in a number of decisions. In Cudak v Liathuania [App No - 15869/02], the applicant was a switchboard operator at the Polish embassy whose main duties were: recording international telephone conversations, typing, sending and receiving faxes, photocopying documents, providing information and assisting with the organisation of certain events. The Grand Chamber was not persuaded that the duties were related to the sovereign interests of the Polish government. This meant that the embassy was not permitted to claim sovereign immunity.

·       More recently, in Kanj v Kuwait UDD (1940/2019), the Labour Court held that the State of Kuwait could not rely on the doctrine of limited sovereign immunity to prevent an unfair dismissal claim against the State being heard at the WRC. This decision was reviewed by the High Court, and Barr J, remitted the matter to the Labour Court for a re-hearing.

·       In addition, in A Driver v A Diplomatic Mission (ADJ-00020005) the WRC held that a driver

employed by an embassy did not come within the sphere of 'public functions' and did not

involve him in the core activities of the embassy. Thus, the WRC ruled that sovereign

immunity did not apply.

·       As the Complainant was employed as a driver and performed routine, administrative tasks for his employer. He is not a citizen of the respondent state, and was a locally employed worker who did not exercise any functions that amount to the exercise of governmental authority. For all of the above reasons, ifthe claim of sovereign immunity is pleaded, it is not well founded.

COMPENSATION

·       The Complainant seeks compensation for the breaches of his employment rights. In Cementation Skanska v Carroll (WTC0338) the Labour Court emphasised the importance of providing real deterrence against future infraction along with financial compensation to the individual employee citing the following European jurisprudence. The Court noted that in Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891 the CJEU has made it clear that where such a right is infringed the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions

.

·       In light of the above the Complainant seeks compensation for the economic loss but also

as a deterrent against future infractions

The Respondent did not attend the hearing of the complaint.

By letter dated 14th July 2023 the Indian Embassy wrote to the Workplace Relations Commission, the following is extracted from that letter:

“The Embassy of India would like to convey that as a Diplomatic Mission in Ireland, Embassy would not be subject to the jurisdiction of the Workplace Relations Commission (WRC), pursuant to the Vienna Convention on Diplomatic Relations 1961. Embassy would therefore like to formally place State Immunity on record in this matter.

Without prejudice to its State Immunity, the Embassy would like to state that it does not accept the claims made by Mr. Adrian Taranu in his complaint(s) to the Workplace Relations Commission of Ireland. Mr. Taranu has not submitted any complaint specific details/statements/documentary evidence whatsoever in respect of any of the complaints to Workplace Relations Commission. He has also not specified the period to which any of his complaints relate to. It is indeed very surprising that a hearing has been scheduled in the matter without the complainant submitting any document in relation/ support of his complaint.

The Embassy would further like to submit that Mr. Taranu’s service conditions are governed by the employment contract that he signed with the Embassy; and he has received his entitlements as per his employment contract”.

State Immunity.

Does the Embassy of India have State Immunity in this matter?

Judgement C – 154 /11, as follows:

Mahamdia

and

People's Democratic Republic of Algeria.

State immunity — Jurisdictional immunity — Employment — Employment at embassy — Dual German and Algerian national employed as driver at Algerian Embassy in Germany — Employment dispute—Whether Algeria entitled to immunity from jurisdiction of the German courts — EU Regulation No 44/2001 — Whether embassy to be treated as branch, agency or other establishment — Contractual clause giving exclusive jurisdiction to the courts of Algeria

Relationship of international law and municipal law — Effect of international law in the law of the European Union — International law on State immunity — Uncertain scope of international law —

The law of the European Union

Summary:

The facts: —Mr Mahamdia, of dual German and Algerian nationality, worked at the Algerian Embassy in Berlin as a driver. His contract of employment contained a clause conferring exclusive jurisdiction over disputes arising from the contract on the courts of the People's Democratic Republic of Algeria (‘Algeria’). In 2007, Mr Mahamdia initiated proceedings against Algeria in a German court, claiming unpaid overtime accrued over the previous two years. He was subsequently dismissed, upon which he appended an additional claim for unlawful dismissal and sought compensation and reinstatement until the end of the dispute. Algeria objected to the jurisdiction of the German court, invoking both international law on State immunity and the exclusive jurisdiction clause in the employment contract.

The Labour Court, Berlin, concluded that the applicant's activities were related to the embassy's diplomatic functions and therefore upheld Algeria's claim to immunity. On appeal to the Higher Labour Court, Berlin-Brandenburg, the judgment was partially quashed on the basis that the applicant's activities were in fact ancillary to the exercise of sovereign powers, thus excluding the immunity of the State from jurisdiction. In addition, the Court found that, notwithstanding the exclusive jurisdiction clause, German courts had jurisdiction to hear the case on the basis of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters of the European Union (‘EU’). Article 18(2) of Regulation No 44/2001 provided that, where an employee entered into an employment contract with an employer who was domiciled outside the EU but who had ‘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’. Article 19 of the Regulation provided that an employee might sue an employer either in the State in which the latter was domiciled or in the State where the employee habitually carried out his work. Article 21 stated that a jurisdiction agreement concluded prior to the dispute might depart from the provisions of the Regulation where it allowed the employee to bring proceedings in courts other than those indicated in Section 5 of Chapter II of the Regulation. The Higher Labour Court considered that the embassy constituted an ‘establishment’ for the purposes of the Regulation and that the jurisdiction clause did not apply since it did not satisfy the conditions set out in Article 21.

Algeria appealed on a point of law to the Federal Labour Court (Bundes-arbeitsgericht), which set the judgment aside and remitted the case to the Higher Labour Court, with directions to determine, inter alia, whether the applicant's activities could be regarded as participating in Algeria's sovereign functions and which court should have jurisdiction to hear the main proceedings. The lower court then referred the following questions to the Court of Justice for a preliminary ruling, in accordance with Article 267 of the Treaty on the Functioning of the European Union (‘TFEU’):

Opinion of the Advocate General

Held:—(1) When adopting secondary legislation, the EU was bound to observe international law in its entirety, including customary international law (para. 17). However, notwithstanding a discernible trend towards relative immunity for acts of State committed jure gestionis, the divergences in national approaches with regard to a State when acting as an employer were so pronounced as to cast doubt on the actual existence of a rule of customary international law (paras. 19–24).

(2) Algeria could not invoke immunity from jurisdiction since, in the view of the referring court, Mr Mahamdia did not participate in the exercise of Algeria's sovereign powers. As such, the State was to be treated in the same way as any private employer. The fact that the employee was posted at the embassy of a non-EU State was not sufficient in itself to frustrate the application of Articles 18 and 19 of Regulation No 44/2001 (para. 32).

(3) An embassy of a non-EU State situated in an EU Member State must be treated as a ‘branch, agency or other establishment’ for the purposes of Article 18(2) of Regulation No 44/2001 in a dispute concerning an employment contract concluded by that embassy in its capacity as a representative of the sending State where the worker was recruited and performed his functions in the Member State, provided those functions were unconnected with the exercise of public authority by the sending State (para. 51).

(4) In light of the purpose of the special rules of jurisdiction governing employment disputes under Regulation No 44/2001, namely the protection of the weaker party to the contract, a jurisdiction clause in an employment contract must be understood as allowing the employee to bring proceedings in other courts in addition to the courts normally having jurisdiction under Articles 18 and 19 of Regulation No 44/2001, thereby allowing him a choice (para. 60).

Judgment of the Court of Justice

Held: —An embassy was an establishment for the purposes of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments.

(1) To determine the meaning of ‘branch, agency or other establishment’ under Regulation No 44/2001, it was necessary to have regard to the purpose of those provisions, which was to protect employees as the weaker contracting party. Two criteria were determinative. First, the entity had to be a centre of operations which had the appearance of permanency, such as the extension of a parent body, with a management and the equipment to negotiate business with third parties, so that they did not have to go to the parent body. Second, the dispute had to concern acts relating to the management of those entities or commitments entered into by them on behalf of the parent body, if those commitments were to be performed in the State in which the entities were situated. Both conditions were satisfied and, consequently, an embassy was an ‘establishment’ within the meaning of Article 18(2) of Regulation No 44/2001 with regard to a dispute concerning a contract of employment concluded by the embassy on behalf of the State, where the functions carried out by the employee did not fall within the exercise of public powers (paras. 48–51 and 57).

(2) In the present state of international law, the immunity of a State from jurisdiction was not absolute and might be excluded where legal proceedings related to acts performed jure gestionis which did not fall within the exercise of public powers. In view of the content of the customary international law rule on immunity of States from jurisdiction, the application of Regulation No 44/2001 could not be precluded in a dispute between an employee and the State employer, where the court seized was satisfied that the functions carried out by that employee did not fall within the exercise of public powers or where the proceedings were not likely to interfere with the security interests of the State (paras. 53–6).

(3) Article 21 of Regulation No 44/2001 must be interpreted as meaning that a jurisdiction agreement concluded before a dispute arose fell within that provision in so far as it gave the employee the possibility of bringing proceedings not only before the courts ordinarily having jurisdiction under the special rules in Articles 18 and 19 of that regulation but also before other courts, which might include courts outside the European Union. It could not be applied exclusively so as to prohibit the employee from bringing proceedings before the courts which had jurisdiction under Articles 18 and 19.

In the instant case before the Workplace Relations Commission, I do not accept that the duties undertaken by Mr Taranu fall within the exercise of public powers and therefore State Immunity does not apply.

Organisation of Working Time Act, 1997.

Section 16 (4) of the Act reads as follows:

A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of contravention to which the complaint relates.

This complaint was received by the Workplace Relations Commission on 27th October 2022. The cognisable period therefore is the period from 28th April 2022 and ending on 27th October 2022.

CA – 00053446 – 001

Section 11 of the Organisation of Working Time Act 1997 (as amended) ('the Act') states: 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.

The Complainant provides some examples i.e. 17th October 2022. The examples of 7th November 2022 and 16th November 2022 are after the complaint was submitted and therefore are not admissible.

CA – 00053446 – 002 - the Complainant alleges that he did not receive his breaks.

The Complainant contends that he did not receive his statutory breaks in accordance with section 12 of the Act and yet has provided no particulars of when he did not receive his breaks.

CA – 00053446 – 003

The Complainant alleges that he did not receive his weekly rest periods.

He has provided one example of this – from 17th October 2022 he worked seven consecutive days.

CA – 00053446 – 004 – the Complainant alleges that he had to work more than the maximum permitted number of hours.

The Complainant has provided no particulars for this complaint.

CA – 00053446 – 005 – the Complainant alleges that he did not receive his paid holiday / annual leave entitlement.

As the Complainant works Monday to Friday, that is his 'working week', and therefore he is entitled for four working weeks holidays and weekends and public holidays are separate to this leave entitlement. However, pursuant to the Complainant's contract, his annual leave is calculated differently as can be seen in Annex at Appendix 5, where it states:

21 days after each completed calendar year of service commencing on 1 January.

In computing the length of period of absence on leave, intervening Sundays,

Saturdays and other holidays will also be treated as leave.

Therefore, the annual leave that the Respondent purports to grant to the Complainant is  21 days simpliciter as it includes weekends in its calculation, and not the 4 working weeks that he is statutorily entitled to receive. This is in breach of section 19 of the Act.

This method of calculation is in breach of section 19 of the Organisation of Working Time Act.

CA – 00053446 – 006 – the Complainant alleges that he did not receive his public holiday entitlements.

Section 21 of the 1997 Act provides that in respect of a public holiday, an employee is entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month that day.,

 (c) an additional day of annual leave,

(d) an additional day's pay.

The public holiday entitlement is separate to any annual leave entitlement. The Complainant has not received his entitlements pursuant to section 21. The complainant is only entitled to public holidays in India.

This is a breach of section 21 of the Organisation of Working Time Act 1997.

CA – 00053446 – 001.

The complaint as presented is well found.

The Respondent is instructed to ensure that the Complainant receives all statutory daily breaks in line with the Act.

CA – 00053446 – 002.

Due to the lack of any particulars the complaint is not well founded.

CA – 00053446 – 003

One instance of this has been highlighted. The complaint is well found.

I order the Respondent to pay compensation to the complainant in the amount of €250.

CA – 00053446 – 004

The complainant failed to provide particulars. The complaint is not well founded.

CA – 00053446 – 005

The complainant’s annual leave entitlement has not been calculated in accordance with the Organisation of Working Time Act 1997. The complaint is well found.

I now order the Respondent to pay compensation to the complainant in the amount of €750.

CA – 00053446 – 006.

The complainant receives the Indian public holidays. This is a breach of the Act. This complaint is well found.

I now order the Respondent to pay compensation to the complainant in the amount of €300.

All monies awarded to the complainant should be paid within 42 days from the date of this decision.

Organisation of Working Time Act 1997.