EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
John Greene UD289/2014
Claimant MN106/2014
against
Government of the United States of America
Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms V. Gates B.L.
Members: Mr J. Horan
Mr T. Brady
heard this claim at Dublin on 18th May 2015
and 20th July 2015
Representation:
Claimant: Ms. Claire Bruton BL instructed by:
Ms. Mary Cullen, Cullen & Co, Solicitors, 86/88 Tyrconnell Road,
Inchicore, Dublin 8
Respondent: Mr. Alan Haugh BL instructed by:
Augustus Cullen, Augustus Cullen Law Solicitors, 7 Wentworth Place,
Wicklow Town, Co. Wicklow
The determination of the Tribunal was as follows:-
Background
The claimant commenced employment as a Security Guard on the 4th April 2005 at the respondent’s embassy located in Ballsbridge. He also worked in various other locations owned by the respondent including the Ambassador’s residence. He had a written contract of employment and was provided with a full uniform displaying the respondent’s emblem on it. His duties included screening vehicles, monitoring security systems and operating x-ray machines. According to his grade he was issued with various access codes around the premises. The claimant was dismissed on the 19th September 2013.
The respondent states it has Sovereign Immunity and therefore the Tribunal does not have jurisdiction to hear the substantive matter in this case.
The claimant rejects this and states the claim should be heard.
Extensive verbal submissions were adduced on both days of the hearing in relation to the issue of jurisdiction as to whether the Tribunal should hear the substantive matters in this case. Further extensive legal submissions were lodged to the Secretariat after the hearing.
Evidence was heard on the second day of the hearing in relation to the preliminary issue only.
Respondent’s Position:
The Regional Security Officer and the Human Resources Manager gave evidence.
The Regional Security Officer and head of security at the embassy and the Ambassador’s residence was the claimant’s supervisor. He took over the role on the 3rd September 2013. He stated the claimant had a key role in the security of the respondent’s premises. He refuted that the claimant’s position was a low-level grade and stated there “was no such thing as a low-level security guard” and said he could “not think of a more important function that the protection of life and property at the embassy in today’s world.” The witness told the Tribunal that the claimant’s role was to protect the consular staff and the premises in which they worked.
He told the Tribunal that all trust and confidence had been lost in the claimant following an incident and the respondent found it necessary to remove the claimant’s security clearance.
Claimant’s Case:
The claimant gave evidence. He said that he had received on the job training when he commenced employment with the respondent. He explained his role was to greet visitors, check to see if they were on the list for that day and carry out a search procedure, for example, check for liquids or sharp items. There were no physical searches performed and any visitors had to walk through an x-ray machine. The claimant told the Tribunal he had no authority over the compilation of the visitors list, the issuing of security cards or access to any “sensitive information”. He said he had no “security function” over the embassy, that task was performed by the respondent’s military.
The claimant told the Tribunal that the issue of sovereign immunity was not explained to him.
Determination
The Respondent raised a preliminary issue, objected to by the Claimant, that the Respondent is immune from suit by virtue of the Doctrine of Restrictive State Immunity and that accordingly, the Tribunal had no jurisdiction to hear the claim. In the course of extensive oral and written submissions, the Respondent submitted, inter alia, that the rules of customary international law governing the issue of State Immunity have for some time been recognised by Irish Courts as forming part of Irish Law as acknowledged in the two most recent Supreme Court cases on the issue of State Immunity, that is, Government of Canada v The Employment Appeals Tribunal (1992) 2 IR 484 and McElhinney v Williams (1995) 3 IR 382. It was also submitted that the United Nations Convention on Jurisdictional Immunities of States and their Property 2004 should be considered in forming part of customary international law although Ireland is not a party to the Convention and that the Claimant’s duties “comes squarely within the scope of Article 11(2)(a)” and that, “his functions as a member of the Embassy security staff necessarily form part of the Embassy’s exercise of Governmental authority and cannot be regarded as an activity governed merely by private law”.
The Claimant submitted, inter alia, that the Doctrine of State Immunity had no application to the case before the Tribunal in that the Claimant’s duties were merely “functional and low level” and accordingly could not be considered to be the performance of “particular functions in the exercise of Governmental authority” as referred to in Article 11(2)(a) of the 2004 Convention. The Respondent also relied on the Government of Canada v The Employment Appeals Tribunal case which held that “if the activity in question truly touches the actual business or policy of the foreign Government then immunity should still be accorded to such activity” and that the application of State Immunity is a presumption which can be rebutted. It was also submitted to the Tribunal that the Respondent had waived its right to rely on State Immunity by virtue of Section 1 of the Employee Handbook which acknowledges the US Government policy to comply as closely as possible with local laws, customs and practices, albeit whilst not contravening US laws and regulations and accordingly, the Respondent could not now rely on State Immunity in defence of its claim before the Tribunal. The Claimant submitted that the Tribunal had jurisdiction to hear the Claimant’s case which was that in summarily dismissing the Claimant, the Respondent had failed to afford fair procedures, failed to allow the Claimant to speak in his own defence and had acted unreasonably and unlawfully and accordingly the dismissal was unfair.
Having heard the initial oral submissions of Counsel, the Tribunal directed that evidence should be given by both parties in order to establish the precise nature of the Claimant’s duties. The Claimant commenced employment as a Security Guard at the Embassy of the United States on the 4th April 2005, which employment terminated by letter of Summary Dismissal on the 19th September 2013 on the grounds that a decision had been made by the Regional Security Officer to revoke the Claimant’s security clearance following an investigation into a security breach at the Embassy.
The evidence disclosed that a comprehensive handbook is furnished to locally employed staff which states that it is a condition precedent to employment by the Respondent that all Embassy employees have security clearance, which is granted, subject to periodic review, by the Regional Security Officer and that revocation of that clearance by the said officer can result in termination of employment. A formal grievance procedure is provided for in the handbook which specifies five situations which may not be made the subject of a grievance, one of which is the removal of security certification.
Having considered the contents of the handbook, the Tribunal does not accept the submission of the Claimant that the Respondent intended or did waive its right to rely on State Immunity, finding nothing in the wording of the Forward to or in Section 1 of the handbook to expressly or impliedly waive the Respondent’s right to rely on the Doctrine of State Immunity in the event of a dispute in relation to a Contract of Service.
Accordingly, thereafter the issue to be determined by the Tribunal, is whether the nature of the Claimant’s employment was such that it touched upon the actual business or policy of the US Government. In reaching its determination the Tribunal considered all of the evidence adduced finding the following matters to be of particular relevance:-
- On the 17th April 2013 the Claimant signed a document acknowledging that “I understand that as a member of the Local Guard Force, I am held to higher standard and would be expected to act in that manner”.
2. The Regional Security Officer gave evidence that the Claimant formed part of “the first line of defence” and was responsible for screening visitors and personnel at the US Embassy and at the Ambassador’s residence where he was deployed from time to time. This was in accordance with the Inter Agency Post Employee Description signed for by the Claimant on the 4th June 2008 stating that he was providing access control under strictly mandated Department of State guidelines screening visitors and vehicles on entry to US facilities. The basic function of the Claimant’s position is set out in the said document and is to “Provide security services to safeguard US Government personnel and property.
The incumbent is required to perform security guard duties as per written instructions at fixed posts and conduct roving patrols at all US Embassy facilities; Required to provide security services to instigate early warnings of impending danger to employees and dependants and will also assist local law enforcement authorities by identifying the threats, both criminal and terrorist, directed at US personnel and property”.
3. The evidence disclosed that on a day to day basis the Claimant’s job involved access control, vehicle checks, questioning of persons presenting at the premises, use of x-ray machines and metal detectors, roving patrols, alarm monitoring and knowledge of certain access codes on all US facilities, including residences and he was furnished with a list of guests attending at facilities and liaised with the Gardaí on duty at the Embassy.
4. The Claimant asserted that his role as a security guard did not form a first line of defence given the presence of US marines and members of An Garda Síochána at the Embassy and residence and that he had only limited access to the premises at which he was deployed, restricted by the presence of marines to whom he had to present identification and his security duties were limited to the outside areas of the Embassy and the residence.
In reaching its determination the Tribunal has carefully considered the two Irish Supreme Court cases above referred to in relation to State Immunity, together with all of the other cases relied upon by each party, Article 6(1) of the European Convention on Human Rights in relation to an individual’s right of access to a Court and the provisions of Article 11(1) of the United Nations Convention pursuant to which a State cannot invoke immunity from jurisdiction before a Court of another State in proceedings which relate to a Contract of Employment between the State and an individual for work performed in the territory of another State and the exceptions thereto contained in Article 11(2) and sub paragraph (a) in particular. In the Government of Canada case which also concerned a Contract of Service it was found, inter alia, that the Doctrine of State Immunity in a restricted form has application in Irish Law where the activity in question truly touches the actual business or policy of the foreign Government and that anything to do with an Embassy is within the public domain of the Government in question although this presumption may be rebutted. Although Ireland is not a party to any international Convention governing State Immunity, the 2004 UN Convention on State Immunity has been considered relevant as forming part of customary International Law in relation to State Immunity and was referred to by both parties in their submissions to the Tribunal. In short, Article 11(1) of the 2004 Convention states that employment contracts are exempted from State Immunity with the result that disputes can be heard in a local Court.
However Article 11(2) sets out a number of exceptions to this general rule and the Respondent relied upon the exception at Article 11(2)(a) which excludes the application of Article 11(1) if “the employee has been recruited to perform particular functions in the exercise of Governmental authority”, and submitted that the duties of the Claimant fall within the scope of this Article. This submission was strenuously resisted by the Claimant on the grounds that his duties were merely functional and low level and therefore far removed from the exercise of Governmental authority.
The Tribunal is of the opinion that the provision of security at an Embassy and Ambassador’s residence constitutes part of a foreign State’s exercise of Governmental authority. Having carefully considered the evidence adduced by both parties in relation to the nature and extent of the Claimant’s duties, the Tribunal is of the view that the Claimant’s day-to-day duties accord with the actuality of the inter agency post employee position description above referred to and accepts that the provision of a “first line of defence” is an important and integral part of the US Government’s security system for the defence of its personnel and property against criminal and terrorist attack and cannot therefore be considered to be merely “functional and low level”. In the view of the Tribunal, the reliance, trust and confidence placed in a Security Guard at the Embassy and residence by the Respondent as part of the general security system creates a relationship which has the effect of involving the Claimant as a security guard in the interest, policy and business of the employing Government. Accordingly, the Tribunal finds that the Doctrine of Restrictive State Immunity applies in this case and that the Tribunal has no jurisdiction to hear the claim.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)