DEC-E2016-105

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-105

SENELISIWE BUTHELEZI

(Represented by MacGuill & Co. Solicitors)

-V-

COY DLAMINI AND THOBEKA DLAMINI

AND

REPUBLIC OF SOUTH AFRICA

(Represented by Tom Mallon BL instructed by Arthur Cox Solicitors)

File reference: EE/2014/009

Date of issue: 19th July 2016

HEADNOTES: Employment Equality Acts, Section 6 Discrimination – Disability. Discriminatory Dismissal.

1 DISPUTE

i. The complainant referred her claims to the Equality Tribunal on the 9th September, 2014. On 20th April, 2016, in accordance with his powers under section 16 of the Workplace relations Act 2015, the Director General of the Workplace Relations Commission delegated the case to me, Niamh O’ Carroll Kelly, an Adjudication Officer for investigation, hearing and deciding the within claims. I proceeded to a hearing on 9th May, 2016.

ii. This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.

2. Preliminary Application.( Respondent’s submissions)

i. The Republic of South Africa and its diplomatic agents accredited to the Republic of Ireland, in making these submissions, are not to any degree whatsoever, waiving their respective rights to Sovereign or Diplomatic Immunity and this submission is made solely for the purpose of asserting those immunities.

3. INTRODUCTION

i. The Claimant, Ms Senelisiwe Buthelezi, submitted her Notice of Complaint to the Equality Tribunal on 9 January 2014. The Claimant asserts that she was discriminatorily dismissed, in contravention of the Employment Equality Acts 1998-2015 (the "Acts").

ii. In her complaint form, the Claimant states:

“I was diagnosed with a serious illness. However, this illness would not have affected my capacity to continue to work with my employer. Despite this, I was dismissed summarily without notice.”

iii. The Claimant was employed as a House Keeper and Child Minder by the first and second Named Respondents, from July 2012 until July 2013. The Republic of South Africa understands that the Claimant's employment with the first and second named respondents was terminated with effect from 17 July 2013. The second named respondent is no longer a Counsellor (Political) in the South African Embassy in Dublin and was reassigned to the South African Embassy in Dakar, Senegal.

iv. The Republic of South Africa did not represent the first and second named respondents.

v. The Republic of South Africa respectfully requested that in light of the submissions made, the Adjudication Officer/Equality Officer dismiss the complaint under the Acts insofar as it relates to the Republic of South Africa.

4. OUTLINE OF SUBMISSIONS

a. The Republic of South Africa limits its involvement in these proceedings only to the preliminary points on the applicability of the principles of sovereign and diplomatic immunity in this case. The Republic of South Africa enjoys sovereign immunity and therefore, the Workplace Relations Commission (“WRC”) /Equality Tribunal does not have jurisdiction to hear the complaint insofar as it relates to the Republic of South Africa.

b. Without prejudice to the foregoing, the Republic of South Africa submitted that the complaint against it should be dismissed on the following grounds:

c. The First and Second Named Respondents enjoyed diplomatic immunity in Ireland at the time of the contract of employment with the Claimant, and therefore the WRC/Equality Tribunal does not have the jurisdiction to hear the complaint against the First and Second Named Respondents;

d. There is no, nor has there ever been, an employment relationship between the Republic of South Africa and the Claimant and therefore the Claimant has no cause of action against the Republic of South Africa under the Acts;

e. The Republic of South Africa is not vicariously liable for the actions of the First and Second Named Respondents in their private capacity;

f. The Republic of South Africa understands that the contract of employment between the Claimant and her employers is governed by the laws of Republic of South Africa, and therefore the WRC/Equality Tribunal does not have the jurisdiction to hear the complaint, and the appropriate jurisdiction for the Claimant to seek redress is the Republic of South Africa.

5. SOVEREIGN IMMUNITY

i. The Republic of South Africa enjoys sovereign immunity, and does not waive any such immunity, and as such, it is respectfully submitted that the WRC/ Equality Tribunal does not have jurisdiction to hear this complaint insofar as it relates to the Republic of South Africa.

ii. The making of these submissions is not a waiver of immunity or the acceptance of the jurisdiction of WRC/Equality Tribunal to any extent.

iii. Sovereign immunity is provided for in the Constitution of Ireland under Article 29.3 which provides that “Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States”.

iv. It was respectfully submitted that the WRC/Equality Tribunal is bound by and must follow the decision of the Supreme Court of Ireland in the Government of Canada –v- The Employment Appeals Tribunal and Brian Burke. That case concerned a claim made by an employee of the Canadian embassy. The notice party was employed as a chauffeur by Canada but he was not a member of the Canadian Foreign Service and enjoyed no diplomatic privileges. The notice party brought a claim before the Employment Appeals Tribunal pursuant to the provisions of the Unfair Dismissals Act 1977. The Government of Canada objected at the Tribunal stating that it had no jurisdiction to hear the claim since the applicant was a sovereign authority and immune from suit in a foreign court or tribunal. The Government of Canada then withdrew from the hearing. The Tribunal proceeded with the claim and awarded compensation to the employee. The Government of Canada sought Judicial Review which relief was initially refused by the High Court where it was held that in circumstances where the Tribunal was not inquiring into any act of sovereignty or of a government of another state the Tribunal was justified in proceeding with such a claim.

v. On appeal the determination of the EAT was quashed by the Supreme Court. Hedderman J made the following observations-

“The service with which this case is concerned is one related to the exercise of the diplomatic functions of the Ambassador in that the notice party’s work was that of driving the Canadian Ambassador’s motor car which was provided for the assistance of the Ambassador in the performance of his duties. I am satisfied that this falls within the area of sovereign immunity envisaged and adopted by the Constitution. For the purpose of this case it is unnecessary to express any view upon the extent to which the doctrine of sovereign immunity may have been modified or limited in respect of commercial activities conducted or undertaken by a foreign sovereign. That is not this case.”

vi McCarthy J, dealing with the matter made the following observations:

“The employment of an embassy chauffeur is not within a trading or commercial area of activity - is it within the sphere of governmental or sovereign activity? Is there some other category, neither commercial nor governmental, in which the embassy may be engaged? A contract of employment or contract of service is not, in that context, a commercial transaction nor is contract cleaning or contract car hire unless such be for the commercial purposes of the foreign mission. Whatever the implications may be in domestic law, whatever the rights might, at first sight, arise in respect of the Unfair Dismissals Act, unless it can be shown that there is a conflict with some private constitutional right, that matter is entirely governed by whatever are established to be the generally recognised principles of international law. There is no indication, whatever, that such principles recognise any exception in litigation or like procedures concerning the employment or non-employment of a member of the embassy domestic staff. Apart from a reference to the constitutional right of access to the courts, it has not been suggested that the principle of sovereign immunity contravenes any constitutional right of the notice party. It is self-evident that the notice party retains the right of access to the courts - this is an exercise of that right albeit as a notice party.”

vii Finally O’Flaherty J reviewed a considerable amount of Irish and foreign case law stated that if the activity called in question truly touches the actual business or policy of the foreign government then immunity would still be accorded to such activity. He went on to deal with the notice party’s employment in the following way:

“Into which category does Mr. Burke’s claim fall, public or private? 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. Is it any different to having the heating system in the embassy repaired? (cf. the claim against the Empire of Iran (1963) 45 I.L.R. 57). I believe it is. I think once one approaches the embassy gates one must do so on an amber light. Prima facie anything to do with the embassy is within the public domain of the government in question. It may be that this presumption can be rebutted as happened in the Empire of Iran case. 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 to this case.”

viii Similar issues have arisen in other employment cases.

Ix In a claim pursuant to the provisions of the Employment Equality Act the Labour Court had to deal with the claim of an Irish citizen employed by the Italian embassy (Italian Embassy –v- Aideen Damery EDA 0417 December, 2004). In that case the claimant made a complaint of discrimination in respect of equal treatment and equal pay on the grounds of race. It is recorded that the Respondent’s legal representative notified the Office of the Director of Equality Investigations that the Respondent was claiming diplomatic immunity pursuant to Article 31 of the Vienna Convention and that the Respondent was also claiming sovereign immunity. In the preliminary issue the Director of Equality Investigations held that it had no jurisdiction. That matter was appealed to the Labour Court which referred to the Government of Canada case. The claimant in the case sought to distinguish her case from the Canadian case arguing, inter alia, the relevance of European Law and the incorporation of European Community Law into Irish Law. The Labour Court stated that it had no jurisdiction to entertain the complaint. A similar decision was reached in Caffrey –v- Instituto CervantesUD 569/96where the Employment Appeals Tribunal found that it had no jurisdiction to hear the claim of an employee employed by a commercial enterprise owned by the Spanish Embassy. The Employment Appeals Tribunal also came to the same conclusion in an unfair dismissal claim by brought by Ms Damery against the Italian Embassy.

x. In the United Kingdom the immunity of foreign states in such proceedings is expressly provided for in the State Immunity Act 1978. There remains some cases however of relevance. In Sengupta –v- Republic of India (1983) ICR 211, the English Employment Appeals Tribunal had to deal with a situation where the State Immunity Act did not apply. Browne-Wilkinson J, President of the English Employment Appeals Tribunal dealt with the matter as follows:-

“They are engaged in carrying out the public functions of the Sovereign State: an investigation of their claim might well require an investigation by the Tribunal into the conduct of the diplomatic mission. Therefore, in our judgment, at common law, a State is immune from claims for unfair dismissal brought by employees at a diplomatic mission who are engaged in carrying out the work of that mission.”

xi In Fogarty –v- The United Kingdom [2002] 34 EHRR 12 the European Court of Human Rights considered whether the exclusion by the UK State Immunity Act of the possibility of bringing a claim for sex discrimination during the process of recruitment for a position within the diplomatic mission of the United Kingdom violated the right of access to a court or tribunal accorded under Article 6 of the European Convention on Human Rights.

xii The European Court of Human Rights held that imposing procedural limitations on the right of access to a court, a state, party to the convention, enjoyed a margin of appreciation. Any limitations would not impair the essence of the right of access to a Court, they must pursue a legitimate aim, and there must be proportionality between the limitations and the aim pursued. Conformity with rules of international law on state immunity was itself a legitimate aim.

xiii There are two prominent cases of the ECHR which relate to the application of diplomatic / sovereign immunity, namely, Cudak –v- Lithuania (2010) 30 BHRC 157and Sabeh El Leil –v- France[1](2011) ILRL 781.

xiv These two cases are to be distinguished in the context of the current status of Irish law. In the Lithuanian case the applicantwas a national of that state employed by the Polish embassy. Under her employment contract, she had to comply with the laws of the respondent state and any disputes were to be settled in accordance with its constitution and legislation on employment contracts, labour remuneration, leave and employee social security. Initially the employee complained of sexual harassment. She was then absent on sick leave and ultimately she was dismissed on the grounds of her failure to come to work on certain dates. She brought a civil claim seeking compensation for unlawful dismissal. The Lithuanian Supreme Court upheld the decisions of the lower courts that they had properly decided that they had no jurisdiction to entertain the case. At page 2 of the Judgment (paragraph 1) it is recorded that the applicant was a national of the respondent state (Lithunia) recruited in that country under a contract that was governed by the law of that country and that Poland itself had agreed that choice of law in the contract. The Court made reference to the Fogarty decision at paragraph 62 of its judgment stating as follows:-

“The court notes that the present case can be distinguished from that of Fogarty v UK (2001) 12 BHRC 132 in that it does not concern recruitment but rather the dismissal of a member of the local staff of an embassy. In spite of that difference, the court takes the view that its finding that the restrictions in Fogarty v UK pursued a legitimate aim similarly applies to the present case. It should therefore now be examined whether the impugned restriction to the applicant’s right of access was proportionate to the aim pursued.”

xv It is clear that the decision in Cudak does not overturn or overrule the decision in Fogartyand Cudakmust be distinguished from the present cases in that the Claimant is not an Irish national, she was not recruited in this State and was not employed by a contract expressly governed by the law of Ireland nor was there any agreement that her contract would be governed by Irish law. It is evident from the particulars of employment provided to the Claimant by her employers, that the Claimant's employment was not to be governed by Irish law, but rather the terms and conditions of employment appear to be governed by the law of the Republic of South Africa. This point is dealt with in further detail below. Furthermore, at no stage was the Claimant an employee of Republic of South Africa, but was employed by two Republic of South Africa nationals in their private capacity. It is stated clearly on the Claimant's contract of employment and other documentation that her employers are the second and third named Respondents.

Xvi Similar arguments can be made in respect of the French case where the applicant was a French national employed as accountant in the Kuwaiti embassy in Paris by the State of Kuwait. At first instance, the Paris Employment Tribunal rejected the arguments advanced on behalf of Kuwait that state immunity applied and the Tribunal held that state immunity did not extent to professional or commercial activities and that the applicant’s duties fell within the framework of a private law activity rather than an activity of governmental authority. The Tribunal upheld the applicant’s complaint. That decision was reversed by the Paris Court of Appeal. In that case, the ECHR held that the restriction on the applicant’s access to a court was in pursuance of a legitimate aim but that it was not proportionate to the aim pursued. Again in the instant case, the WRC/ Equality Tribunal is bound by the determination of the Irish Supreme Court that has expressly held that contracts of employment of the type envisaged here do not fall within the commercial activity that might be undertaken by an embassy or a foreign state. The decision of the Supreme Court binds the WRC/ Equality Tribunal in its determination and it is respectfully submitted that it is not open to the WRC/ Equality Tribunal to rely on decisions of ECHR which deal with cases which have arisen of nationals in receiving states being denied access to the courts in their own states in respect of contracts which are governed by the receiving state law.

xvii Another case which relates to diplomatic/sovereign immunity in the employment context is Mahamdia –v- Peoples Democratic Republic of Algeria154/11 July 2012.

xviii It is clear from a full and proper reading of the Judgment of the European Court that that decision was not about the ability of an employee to bring a claim arising out of his dismissal but related to the interpretation of Council Regulation EC No 44/2001. At paragraph 32 of the Judgment the ECJ noted the following:

“In its order for reference the Landesarbeitsgerigcht Berlin-Brandenberg ( Higher Labour Court) considers that, in accordance with Article 25 of the Basic Law of the Federal Republic of Germany, States can plead immunity from jurisdiction only in disputes concerning the exercise of their sovereignty. According to the case law of the Bundesarbeitsgericht, employment law disputes between embassy employees and the state concerned are within the jurisdiction of the German Courts where the employee has not carried out, for the state by which he is employed, activities forming part of the sovereign functions of that state.”

xix. It is clear from the foregoing that under German law employment disputes fall within the jurisdiction of the German Courts but it is clear that under Irish Law (See Embassy of Canada Case) that employment disputes with diplomatic missions do not fall within the jurisdiction of the Irish Courts or employment tribunals. It is accordingly respectfully submitted that the decision in Mahamdia is wholly irrelevant in the instant case.

xx. In all of the circumstances it is respectfully submitted that the WRC/ Equality Tribunal does not have jurisdiction to hear this complaint due to the sovereign immunity of the Republic of South Africa and the complaint against the First Named Respondent should be dismissed.

6. DIPLOMATIC IMMUNITY

i. Article 37(1) of the Vienna Convention on Diplomatic Relations 1961 provides as follows:

“The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in articles 29 to 36.”

ii. Article 30(1) provides that the private resident of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission and Article 31(1) provides that a diplomatic agent shall enjoy immunity, inter alia, from the civil and administrative jurisdiction of the receiving state except in the cases as set out in sub paragraphs (a), (b) and (c) of that Article. (a) and (b) relate solely to real property and administration of estates and sub article (c) provides for immunity in respect of actions relating to any professional or commercial activity exercise by the diplomatic agent in the receiving state outside his official functions. It is respectfully submitted that in those circumstances the Republic of South Africa enjoy the immunities granted under the Convention and the fact that the Appellants worked in the domestic residence of the Ambassador is entirely irrelevant.

iii. The Republic of South Africa does not purport to respond to or defend the merits of this complaint for or on behalf of the First and Second Named Respondents save as to confirm that:

a. The Second Named Respondent, was an accredited diplomatic agent between 24 April 2012 to 11 April 2014 and notified as such to the Department of Foreign Affairs and Trade of Ireland and is therefore entitled to immunity from the civil and administrative jurisdiction of Ireland pursuant to Article 31.1 of the Vienna Convention on Diplomatic Relations of 1961 (“the Convention”) which forms part of Irish law pursuant to section 5 of the Diplomatic Relations and Immunities Act 1967;

b. The First Named Respondent, was accredited as a family member between 24 April 2012 to 11 April 2014 and notified as such to the Department of Foreign Affairs and Trade of Ireland and is therefore entitled to immunity from the civil and administrative jurisdiction of Ireland pursuant to Article 37.1 of the Convention.

iv. It is respectfully submitted that the WRC does not have jurisdiction to hear the Claimant's complaint against the First and Named Respondents on the basis of their diplomatic immunity, and therefore the Claimant’s complaint should be dismissed.

7. NO RELATIONSHIP OF EMPLOYMENT

i. The Acts relate solely to claims of discrimination and / discriminatory dismissal by employers or associated employers of an employee or prospective employee. The Republic of South Africa was not, nor ever was, the employer of the Claimant and therefore the Claimant lacks locus standi to bring a claim against the Republic of South Africa.

ii. The Republic of South Africa was not a party to the contract of employment between the Claimant and first and second named respondents and was not, nor ever has been, the Claimant’s employer. The Republic of South Africa has no knowledge of the facts surrounding the complaint before the WRC/Equality Tribunal and is not the appropriate respondent to this complaint.

iii. In support of its contention that the Claimant is not an employee of Republic of South Africa, Republic of South Africa refers to the application for an entry visa for the Claimant from the First and Second Named Respondent to the Department of International Relations & Cooperation in South Africa . The letter clearly states that the Claimant is to be employed by the First and Second Named Respondent. Furthermore, by letter dated 18 July 2012, to the Department of Foreign Affairs and Trade, the Second Named Respondent clearly states that she takes “full responsibility for the employment of my private servant, .....". A copy of this letter was submitted. A further confirmation of the employment status of the Claimant is set out in a letter dated 15 July 2012 from Embassy of South Africa to the Department of Foreign Affairs confirming that the Claimant would be in the employ of the second Named Respondent.

iv. The Particulars of Employment dated 26 June 2012 sets out the terms and conditions of the Claimant’s employment. Both the Claimant and the Second Named Respondent have signed this document. Again, the Second Named Respondent is clearly identified as the employer of the Claimant.

v. On her arrival in Ireland, the Claimant received a stamp in her passport which states that "The holder of this passport is permitted to stay in Ireland while in the employment of the South African Embassy". This official stamp does not reflect the factual reality of the Claimant’s employment status in Ireland. It stamp requires the immigration officer to insert the name of the relevant embassy for the purposes of granting an entry visa. Below the stamp is handwritten wording (presumably by the immigration officer) which states “Private servant to.... Counsellor at the Embassy of South Africa. No employment or recourse to public funds….”. The Republic of South Africa submits that the handwritten comment on the immigration stamp reflects that the immigration officer intended to indicate that the stamp did not reflect the full employment situation of the Claimant.

vi. The Claimant did not work in or on behalf of the Embassy or Republic of South Africa at any time. The Claimant had no connection with any individual associated with the Embassy or Republic of South Africa's diplomatic function in Ireland, other than the Second Named Respondent. There is no basis in the Claimant's assertions that she was an employee of the Embassy or of Republic of South Africa, when, in Republic of South Africa's respectful submission, the relationship was clearly a private employment relationship between the Claimant and the First and Second Named Respondents.

8. NO VICARIOUS LIABILITY

i. The Republic of South Africa is not liable or vicariously liable for the actions of its staff in respect of their private contractual matters, such as the employment of domestic workers. On that basis, the Republic of South Africa at no time had any legal obligation to the Claimant in respect of her employment in Ireland.

9. CONTRACT OF EMPLOYMENT IS SUBJECT TO SOUTH AFRICAN LAW

i. Without prejudice to the fact that the Republic of South Africa is not the employer, and has no connection to the Claimant, the contract of employment between the first and second named respondent and the Claimant was entered into in South Africa and is governed by South African law.

ii. The contract of employment was entered into in Republic of South Africa, by South African nationals.

iii. On review of the Particulars of Employment dated 26 June 2012, it is evident that the contract is not an Irish law contract. Firstly, the document is not in compliance with the statutory requirements of the Terms of Employment (Information) Act 1994. Furthermore, the salary is listed in South African Rand, as opposed to Euro. In addition, the working time, maternity leave and provisions relating to the termination of employment are not in compliance with Irish law.

iv. It is respectfully submitted that the WRC/Equality Tribunal does not have jurisdiction to hear the Claimant's complaint and that any redress sought by the Claimant should be taken before the appropriate forum in South Africa.

10. THE COMPLAINANT SUBMISSIONS

i. The Republic of South Africa has previously asserted (at the Employment Appeals Tribunal) that it enjoys sovereign immunity and therefore, that the Tribunal did not have jurisdiction to hear the complaint. It is submitted on behalf of the claimant that in light of the particular facts and circumstances of this case, sovereign immunity does not apply in this case and that it does not prevent the Workplace Relations Commission from adjudicating or considering the claim.

ii. The Supreme Court case of The Government of Canada v The Employment Appeals Tribunal and Brian Burke [1992] 2 IR 484 involved an employment law claim by a dismissed embassy driver. In this case, the Supreme Court held that the doctrine of sovereign immunity is one of the generally recognises principles of international law which by Article 29 (3) of the Constitution, Ireland has accepted as its rule of conduct in its relations with other states. The Supreme Court further held that the general principles of international law no longer recognised absolute state immunity and instead, a much more restrictive principle of sovereign immunity existed.

iii. Justice O’Flaherty set out the position on the principle of sovereign immunity:

“1. I doubt if the doctrine of absolute sovereign immunity was ever conclusively established in our jurisdiction.

2. Assuming that it was, I believe that it is a doctrine that has now expired.

3. 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.

4. However, if the activity called in question truly touches the actual business or policy of the foreign government then immunity should still be accorded to such activity.”

iv The Supreme Court applying these principles held that the element of trust and confidentiality that is reposed in the driver of an embassy car had the effect of involving him in the government’s public business organisation and interests. In such circumstances, the Supreme Court held the restrictive doctrine of sovereign immunity still applied to this case.

v The claimant was employed by the respondents as a child-minder and housekeeper. The nature of the claimant’s employment may be distinguished from that of driver of an embassy car, no roles or duties undertaken by the claimant involved her in the government’s public business organisation and interests. In such circumstances it is submitted, that the restrictive doctrine of sovereign immunity as enunciated in the Government of Canada Case does not provide immunity to the respondents in this case and that the Workplace Relations Commission has jurisdiction to hear the claimant’s application.

vi Further or in the alternative, it is submitted that in the two decades since the decision of the Supreme Court in the Government of Canada Case, that developments in International and European law as detailed below, has further eroded the principle of sovereign immunity.

vii In Mahamdia v People’s Democratic Republic of Algeria, Case C-154/11, the European Court of Justice considered the issue of sovereign immunity in the context of considering Council Regulation (EC) No 44/2001 on jurisdiction and recognition and enforcement of judgments in civil and commercial matters. This case originated from proceedings before the German national courts, where Mr Mahamdia, a relief driver at the Algerian Embassy, contested his dismissal. The German national courts held that Mr Mahamdia’s work did not form part of the exercise of public powers by the defendant and instead constituted an activity that was ancillary to that State’s exercise of sovereignty. Therefore holding that the employer did not enjoy immunity in this case.

viii The judgement of the Grand Chamber of European Court of Justice considered that sovereign immunity will not apply to private or commercial acts which do not fall within the exercise of public powers. This includes employment relationships which do not touch on the public powers or security interests of a State:

“Before the German courts and in the observations it submitted in the present proceedings for a preliminary ruling, the People’s Democratic Republic of Algeria argued that recognising the jurisdiction of a court of the receiving State of an embassy would amount to disregarding the rules of customary international law on immunity from jurisdiction, and that, taking those rules into account, Regulation No 44/2001, in particular Article 18, is not applicable in a dispute such as that in the main proceedings.

On this point, it must be observed that under the generally accepted principles of international law concerning immunity from jurisdiction a State cannot be sued before the court of another State in a dispute such as that in the main proceedings. Such immunity of States from jurisdiction is enshrined in international law and is based on the principle par in parem non habet imperium, as a State cannot be subjected to the jurisdiction of another State.

However, as the Advocate General observes in points 17 to 23 of his Opinion, in the present state of international law, that immunity is not absolute, but is generally recognised where the dispute concerns sovereign acts performed iure imperii. It may be excluded, by contrast, if the legal proceedings relate to acts performed iure gestionis which do not fall within the exercise of public powers.

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.”

ix The Employment Appeals Tribunal case of Asha Abdullahi Adan v Embassy of the Republic of Kenya [2013] 4 JIEC 0508 dealt with this issue. This case involved a claimant cleaner who was dismissed from her employment with the Kenyan Embassy. The respondent in this case failed to attend the Employment Appeals Tribunal hearing.

x The Employment Appeals Tribunal in considering both the Government of Canada case awarded the claimant compensation finding:

“In Government of Canada v Employment Appeals Tribunal (1991)['the Canadian Embassy Case'] the Supreme Court, in an employment law claim by a dismissed embassy driver, accepted that the doctrine of absolute sovereign immunity no longer existed. However, the Court found that a restricted form of state immunity existed and applied it to the case. The driver was found to be involved in the employing government's public business organisation and interests because of his peculiar position of trust and confidentiality.

The European Court recently affirmed that absolute sovereign immunity no longer applies. In Ahmed Mahamdia v Peoples' Democratic Republic of Algeria Case C-154/11 , ('Mahamdia') a relief driver at the Algerian Embassy contested his dismissal before the German courts. Algeria argued that as a foreign state it enjoyed immunity from jurisdiction in Germany, where the embassy in question was located. According to the Court, the case concerned a contract of employment concluded by the embassy where the functions of the employee did not fall within the exercise of public powers. In the exercise of its functions, an embassy, like any other public entity, can acquire rights and obligations of a civil nature, in particular as a result of concluding private law contracts.

The Tribunal is satisfied that the claimant's functions as a cleaner did not fall 'within the restricted form of state 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'.”

xi The European Convention on Human Rights has addressed this issue on many occasion. Initially, with the decision of the European Court of Human Rights (ECrtHR) in the case of Fogarty v United Kingdom (Application no. 37112/97). The claimant’s situation can be distinguished from the Fogarty decision on the basis that it involved a consideration of the application of the principles of sovereign immunity in the recruitment process.

xii Further, recent judgments from the ECrtHR has found that sovereign immunity will not apply to employment situations were the employment duties do not relate to the sovereign interests of the State.

xiii In Cudak v Lithuania (Application No. 15869/02) a Lithuanian national employed as a secretary at the Polish embassy in Vilnius brought an action for compensation in the Lithuanian courts following her dismissal. The Republic of Poland had claimed immunity from jurisdiction, which had resulted in the Lithuanian courts declining jurisdiction. The applicant claimed a violation of her right to access to a court and the ECrtHR found a violation of Article 6(1).

xiv The ECrtHR distinguished the position of the applicant, Ms Cudak from the Fogarty case in that it does not concern the recruitment but dismissal. The ECrtHR noted that the application of absolute State immunity has clearly been eroded. The ECrtHR undertook an extensive review of the principles of international law in relation to the principles of sovereign immunity and held that the 1991 Draft Articles of the International Law Commission and the United Nations Convention on Jurisdictional Immunities of States and their Property 2004 codified the principles of customary international law. The judgment continues to consider the nature of the employment of the applicant.

“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.

74. In conclusion, by upholding in the present case an objection based on State immunity and by declining jurisdiction to hear the applicant's claim, the Lithuanian courts, in failing to preserve a reasonable relationship of proportionality, overstepped their margin of appreciation and thus impaired the very essence of the applicant's right of access to a court.”

xv The claimant in her position as child-minder/domestic housekeeper duties included, preparing food, cleaning the house and caring for children. At no point did the claimant perform functions related to the exercise of sovereignty of the South African state. The claimant was not entitled to access sensitive or confidential information. It is submitted on behalf of the claimant that her employment relationship is akin to that in the Cudak case and thus falls outside the protection of the doctrine of sovereign immunity.

xvi The ECrtHR confirmed its ruling in Cudak v Lithuania and continues to rely on its reasoning in subsequent cases such as Sabeh El Leil v France (Application no. 34869/05). In the Sabeh El Leil case, the ECrtHR set out the onus on the national courts to consider the provisions of international law and assess the individual circumstances of the case and in particular, to have regard to the principle of proportionality:

“67. In conclusion, by upholding in the present case an objection based on State immunity and dismissing the applicant’s claim without giving relevant and sufficient reasons, and notwithstanding the applicable provisions of international law, the French courts failed to preserve a reasonable relationship of proportionality. They thus impaired the very essence of the applicant’s right of access to a court.”

2. Diplomatic Immunity

i. The second and third named respondents were not present at the hearing. That being so, it is submitted on behalf of the claimant that in those circumstances, the issue of diplomatic immunity does not arise and that the Workplace Relations Commission ought to proceed to consider the substantive claim.

ii. In the case of Asha Abdullahi Adan v Embassy of the Republic of Kenya [2013] 4 JIEC 0508 the Respondent Embassy failed to attend an Employment Appeals Tribunal hearing. The Employment Appeals Tribunal held:

“Under the Unfair Dismissal Acts, 1977 to 2007, the onus of proof rests on the employer to either justify the dismissal or claim that the Tribunal had no jurisdiction to hear the case on the ground of sovereign immunity. In this particular case the respondent chose to do neither. In such circumstances, it is our view that it is not only inappropriate for the Tribunal to “step into the shoes” of the Kenyan Embassy and plead sovereign immunity on its behalf but it would be grossly unfair to the claimant to do so.”

iii Similar reasoning was applied by the Employment Appeals Tribunal in the decision of Calderon & Others v Khalid Nasser Rashed Lootah & Mahra Metad Alghubaisi.

iv Section 5(1) of the Diplomatic Relations and Immunities Act, 1967 transposes into Irish law the provisions of the Vienna Convention on Diplomatic Relations, 1961 (1961 Convention) and sets out the framework for diplomatic immunity. It provides that a diplomatic agent enjoys immunity from both criminal jurisdiction and civil and administrative jurisdiction of the receiving State. Crucially, the 1961 Convention does not provide for absolutely immunity in the case of civil and administrative actions. In particular, diplomatic immunity does not apply to, “an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.”

iv. It is the claimant’s submission that the employment relationship, as child minder and house keeper, with the respondents falls within the remit of the “professional or commercial activity” exception and that the claims are not protected by diplomatic immunity.

v. This is in adherence with the view of the European Court of Justice in Mahamdia case were the court held:

“49. 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, consist essentially in representing the sending State, protecting the interests of 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.”

11. FINDINGS & CONCLUSIONS.

i. Does the complainant have locus standi to bring the within claim against the Republic of South Africa?

ii. It is clear from the submissions and the documentation submitted that the complainant’s contract of employment was with the first and second respondent, the second named respondent taking full responsibility for her. It is clear that there is no nexus between the complainant , the contract and the third named respondent. I am satisfied that the Republic of South Africa, in circumstances were a private contractual arrangement was entered into between the complainant and the second named respondent, is not and could never be vicariously liable for the actions of the first and second named respondents.

iii. Accordingly, I find that the complainant does not have locus standi to bring a claim again the Republic of South Africa and therefore I have no jurisdiction to hear that matter.

iv. Does the tribunal have jurisdiction to hear the claim as against the first and second respondents?

v. The first and second named Respondents did not appear at the hearing of the matter. In those circumstances the complainant argued that it was not for me, the adjudicator, to assume diplomatic immunity on their behalf. In that regard they relied on the case of Asha Abdullahi Adan v Embassy of the Republic of Kenya [2013] 4 JIEC 0508 where the Respondent Embassy failed to attend an Employment Appeals Tribunal hearing. The Employment Appeals Tribunal held:

“Under the Unfair Dismissal Acts, 1977 to 2007, the onus of proof rests on the employer to either justify the dismissal or claim that the Tribunal had no jurisdiction to hear the case on the ground of sovereign immunity. In this particular case the respondent chose to do neither. In such circumstances, it is our view that it is not only inappropriate for the Tribunal to “step into the shoes” of the Kenyan Embassy and plead sovereign immunity on its behalf but it would be grossly unfair to the claimant to do so.”

vi Similar reasoning was applied by the Employment Appeals Tribunal in the decision of Calderon & Others v Khalid Nasser Rashed Lootah & Mahra Metad Alghubaisi a matter with which this adjudicator is very familiar.

vii One distinguishing feature from those two cases and the within case is that there was no appearance on behalf of the respondent whatsoever and therefore the tribunal had no facts in relation to the ‘other side’ of the dispute.

viii In this matter there is an appearance by the Republic of South Africa. That is significant because in their arguing of the matter pertaining to their position, crucial facts in relation to the first and second named respondents position have been opened to me and I cannot apply those facts to the third named respondent’s position and ignore them in relation to the first and second named respondents.

ix In that regard I find that all facts opened to me during the hearing of the preliminary matter are relevant and can be considered by me in deciding the preliminary matter in relation to the first and second named respondents.

x Article 37(1) of the Vienna Convention on Diplomatic Relations 1961 provides as follows:

“The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in articles 29 to 36.”

xi Article 30(1)

“ A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:

(c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside of his official functions.

Xii Section 5, Diplomatic Relations and Immunities Act, 1967

(1) The provisions of the Vienna Convention on Diplomatic Relations done at Vienna on the 18th day of April, 1961, as set out in the First Schedule to this Act, shall have the force of law in the State.

xiii I fully accept that over the passage of time the generally recognised principle of absolute state immunity as been eroded. A more restrictive principle now exists. However, any deviation from the principle must be carefully considered.

Xiv The leading case in this jurisdiction in relation to the matter is the Government of Canada –v- The Employment Appeals Tribunal and Brian Burke. Arising from that case must establish the following:

a) Into which category does the complainant’s claim fall, public or private?

The employment of a ‘Domestic Worker/Childminder’ is clearly not a commercial contract in the ordinary sense of the word. It is a normal private contract of service.

b) Is the contract of employment or contract of service for the commercial purposes of the foreign mission?

It is clear from the facts of this case that it is not.

c) Do the facts of the matter bring it within the exceptions set out the Convention?

None of the exceptions as set out in Article 31 (1) (a) to (c) are applicable to the within case.

xv. The complainant seeks to differentiate the within case from that of the Canadian case. In that regard it is stated that the nature of the complainant’s role was separate from that of the diplomats and did not overlap with the diplomat’s government’s public business organisation and interests in any way, unlike the chauffeur’s role. The complainant argues that the Mahamdia v People’s Democratic Republic of Algeria is revelant to her situation. I find having considered the full text of the case mainly relates to the interpretation of Council regulation EC No. 44/2001. However, it is clear for it that under German law employment contracts of the type in this case do fall within the jurisdiction of the German Court where the employee has not carried out, for the state by which he is employed, activities forming part of the sovereign functions of the state. Whilst this case may have some persuasive value I am not bound by it unlike the Canadian case.

xvi The complainant further relies on the case of Cudax v Lithuania wherein a Lithuanian national employed as a secretary at the Polish embassy in Vilnius brought an action for compensation in the Lithuanian Courts following her dismissal. The Republic of Poland had claimed immunity from jurisdiction, which had resulted in the Lithuanian Courts declining jurisdiction. The applicant claimed a violation of her right to access to a court and the ECrtHR found a violation of Article 6(1).The ECrtHR noted that the application of absolute State immunity has clearly been eroded. The ECrtHR undertook an extensive review of the principles of international law in relation to the principles of sovereign immunity and held that the 1991 Draft Articles of the International Law Commission and the United Nations Convention on Jurisdictional Immunities of States and their Property 2004 codified the principles of customary international law. The judgment continues to consider the nature of the employment of the applicant.

“ 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.

In conclusion, by upholding in the present case an objection based on State immunity and by declining jurisdiction to hear the applicant's claim, the Lithuanian courts, in failing to preserve a reasonable relationship of proportionality, overstepped their margin of appreciation and thus impaired the very essence of the applicant's right of access to a court.”

This case involved primarily the right of access to the courts. Unlike the within case the claimant, in Cudax, was a Lithuanian national, working in Lithuania albeit for a Polish Embassy, with a contract of employment stating that she was bound by the law Lithuania. On that basis the case must be distinguished from the within case.

xvii The complainant, who is South African, was employed by the first and second named respondent’s who are South African, under a contract of employment who’s terms and conditions of employment are governed by the law of South Africa. Her remuneration was in the currency of South Africa, the rand. Her place of work was at the private residence of the first and second named respondents in Ireland.

xviii It is clear from the complete reading of this cases and all of the submission made during the course of the preliminary hearing that I cannot deviate from the findings in the Canadian Case and must interpret those findings in line with our constitution and the Vienna Convention. In doing so I find that I do not have jurisdiction to hear this matter and that the complainant if she wishes to enforce her rights must do so in the Republic of South Africa.

12. DECISION.

I have investigated the above complaints and make the following decision in accordance with section 79 of the Acts that:

· The Tribunal has no jurisdiction to hear the matter as against all three respondents.

_____________________________

Niamh O’ Carroll Kelly BL

Adjudication Officer/Equality Officer

19th July 2016