Ombudsman criticizes arrest and detention of female migrant who complained of sexual harassment

Policy Response DateJune 5, 2012 Country: Cyprus General Type: Discrimination, Institutional discrimination Racism and discrimination phenomena: Anti-migrant/xenophobia
Groups affected / Interested in: Migrants Key socio-economic/institutional areas: Employment - labour market, Anti-discrimination, Anti-racism

On 11.03.2012 the complainant, a Philippina working as a domestic worker, left her employer’s house where she was residing and filed a complaint against her employer for breach of her employment contract. She cited, in particular, the fact that she was forced to work excessive hours, that she had to clean more than one house, namely the houses of her employer’s children, and that she had to share a room with a male colleague of hers.[1] Upon exiting the building where she filed her complaint, she was arrested and detained for the purpose of her deportation and remained in detention for two months until her deportation. The execution of the deportation order was suspended until examination of her complaint for a labour dispute. The Department of Labour Relations of the Ministry of Labour confirmed her allegations regarding the violation of her working conditions by her employer and recommended that she be allowed to remain in Cyprus and change employer. However, the Committee for Examining Labour Disputes (‘CELD’)[2] refused to grant her a permit to change employer, insisting that she ought to be deported. Although the CELD agreed that her allegations regarding the violation of the employment contract were well-founded, it argued that such violation occurred with her ‘consent’ in her effort to earn extra income; that she sustained and tolerated the violation of her contract for 15 months without complaining; and that the employer’s obligation to provide suitable accommodation did not mean that she was entitled to a room by herself.

The Ombudsman found that (Decision Ref. Α.P. 588/2012 dated 05.06.2012): The Ombudsman stated that her office has received a great number of complaints about migrant workers detained and deported after having duly and faithfully followed the procedure prescribed by the CELD itself for the filing of complaints against their employers; she also declared her intention to issue a separate report on this matter in the near future. The practice of arrest and detention of migrant workers complaining for employment related issues was based on a 10-year old policy of the CELD which the Ombudsman had, since 2003, asked to be revised. The result of the 2003 Ombudsman’s intervention was that this policy is now implemented arbitrarily in some cases and not in others, without any justification. In recognition of the seriousness of the violations present in this case, the Department of Labour Relations recommended that the complainant’s request to remain in Cyprus and change employer be granted. The CELD however, using unclear criteria and based on the complainant’s presumed ‘consent’ and ‘complicity’, had a different position and recommended her deportation. The procedure followed by the CELD, its mandate and lack of regulatory framework, had been the subject of a previous Ombudsman report in 2010, where the Ombudsman concluded that the absence of a specific institutional framework for the resolution of labour disputes has led to the phenomena of racism and unlawful discrimination by officers of the CELD.[3] No improvements were carried out to the regulatory framework of the CELD since the 2010 Ombudsman recommendations, which continues to operate with the same pro-employer and anti-migrant bias.

The Ombudsman further pointed out that the CELD failed to take into account the relative relationship of the employer with the owners of the other houses which the complainant was forced to clean and the employer’s overall position of power, which rebut the presumption of complacency on the part of the complainant. Even the obvious requirement of the complainant for personal space, let alone the avoidance of cohabitation with a male fellow worker, was discredited and degraded by the CELD. As in its previous report of 2010 on the same subject, the Ombudsman had concluded that the unclear regulatory framework for examining labour disputes between migrant workers and their employers allowed the intrusion of subjective judgments and unspecified criteria, which led to the discriminatory treatment of the complaining migrant workers.

The report notes that, in this case, a worker whose labour rights had been violated and who faithfully followed all the correct procedures for filing a complaint, found herself in detention and subject to deportation; this marks a significant regression in the efforts to secure the legitimate rights of a group of workers that is vulnerable to discrimination. The report asks for the immediate release of the complainant and for granting her the right to change employer. According to information supplied by the Ombudsman’s office, the authorities complied with the recommendation of releasing the complainant from detention and granting her permit to change employer; however, no institutional changes were introduced to the framework of operation of the CELD in order to prevent similar instances from being repeated in the future.

Comment:  The report cites no legal framework upon which this decision is premised.[4] The opportunity of making use of Law 58(I)/2004, transposing Directive 43/2000, in order to declare the CELD’s practice as discriminatory and thus unlawful, was lost. Instead, the CELD receives mere criticism from this report which, although it had an impact on the particular case, is unlikely to lead to any institutional changes.

The decision to examine this complaint in its capacity as Ombudsman, rather than in its capacity as the national Equality Body is unclear; the legal framework governing the mandate of the equality body is much wider than that of the Ombudsman and provides opportunities for issuing decisions that may be used in Court in order to obtain compensation, in comparison with the Ombudsman who is not entitled to issue any decisions, only mere recommendations. Thus, the complainant lost the opportunity of pursuing a claim in Court against her employment for compensation as a result of the violation of her employment contract and against the authorities for false imprisonment.

The sequence of events in this case and particularly the fact that the complainant was arrested the minute she filed her complaint suggest that the employer intervened with particular state officers to secure the complainant’s arrest and deportation. Such interventions may be the reasons why the practice of arresting and deporting complaining migrant workers is applied in some cases and not in others.

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[1] The standard contract for migrant domestic helpers provides that they must only clean one house, that of their employer. The same contract provides that the employer must make available to them suitable accommodation, but the term ‘suitable’ is not defined either in the contract or elsewhere.

[2] The CELD is a special body comprising of representatives from the police, the immigration department and the Labour Office, mandated specifically with the examination of and the final decision over labour-related complaints by migrant workers against their employers. Depending on the CELD’s decision, the complainant migrant worker may either be allowed to remain in Cyprus and change employer or s/he may be asked to leave the country, failing which s/he will be deported

[3] See Flash Report dated 16 June 2010.

[4] Upon contact with the Ombudsman’s office, the expert was informed that the officer who drafted this report was not a legal person.