ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00004363

Parties:

Complaint:

Date of Adjudication Hearing: 28/09/2017

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

Preliminary Issue- Jurisdiction

SOVEREIGN/STATE IMMUNITY

Respondent’s Position

The Workplace Relations Commission (WRC) does not have jurisdiction to hear this complaint by reason of the fact that Respondent enjoy sovereign/state immunity.

The Respondent does not waive their immunity, and the following submissions are made for the sole purpose of invoking immunity and do not constitute a waiver of immunity, or an acceptance of the jurisdiction of the WRC, and are made entirely without prejudice to the immunity enjoyed by the Respondent, the rights of its State in International Law.

IDENTITY OF RESPONDENT

The Claimant has identified the wrong Respondent.

The correct employer is stated on the contract of employment. The Cultural Office has no separate legal personality and is a division of the Embassy.

The Claimant was employed on foot of a contract made between the Claimant and the named Government, on or about the 28^th of November 2006.

The Claimant’s former employer is clearly identified by the contract, is the named Government.

The Claimant’s salary was paid on an invoice basis, and she was responsible for her own tax arrangements and was not part of the PAYE system. An ex gratia payment made to the Claimant upon the termination of her contract of employment was made by the Department of Higher Education of the named Government.

It is respectfully submitted that the identity of the Respondent is not simply a matter of form and that in the circumstances the Respondent’s claim must fail due to her failure, which cannot be explained or excused, to correctly identify her employer upon making her complaint, particularly in circumstances where the correct Respondent, the Government of Kuwait, enjoys state/sovereign immunity in relation to this matter.

BACKGROUND

The Claimant was employed as an accountant on foot of a contract of employment executed by her and on behalf of the named Government on the 28^th of November 2006. The Claimant commenced employment on or about the 27^th of December 2006.

Her primary duties concerned the provision of financial support by the Ministry of Higher Education to its students studying in Ireland. As such she held a position of responsibility and trust in that she handled funds belonging to the named Government and disbursed them to students living and studying in the Republic of Ireland.

The Claimant’s contract with the named Government was terminated by mutual agreement following severe disciplinary difficulties, involving a breakdown in trust and confidence, and after a written warning, and in accordance with its terms.

The Claimant ceased working on or about the 15^th of October 2015. She received two months paid notice and an ex gratia payment of €3,622.20. The Claimant provided a written letter of resignation dated 16^th October 2015.

SOVEREIGN/STATE IMMUNITY – Article 29 and Government of Canada v. The Employment Appeals Tribunal and Burke

The named Government invokes sovereign or state immunity under Irish law in respect of this claim.

The principle of state/sovereign immunity is recognised in Article 29.3 the Irish Constitution, which provides that: “Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States.”

While in international law, the principle of absolute state immunity has been eroded, and a more restrictive principle now exists, it is clear that “any deviation from it must be carefully considered”.[1] Unlike in other jurisdictions, [2] this principle has never been abrogated, qualified or moderated by the Oireachtas.

It is respectfully submitted that in all the circumstances the named Government is entitled to rely upon the doctrine of restrictive state immunity.

The leading case outlining the correct approach in Irish law is Government of Canada v. The Employment Appeals Tribunal and Brian Burke[3]. This well-known case concerned a chauffeur employed by the Canadian Embassy. He was an Irish national and did not enjoy diplomatic privileges. When his employment was terminated he brought a claim before the Employment Appeals Tribunal for unfair dismissal. The Government of Canada attended at the Tribunal solely to submit that the EAT had no jurisdiction to hear the claim since the respondent was a sovereign authority and immune from suit in a foreign court or tribunal. The Government of Canada then withdrew from the hearing. The EAT went on to hear the application and made an award against the Government of Canada. That decision was challenged by way of Judicial Review, on the basis that the EAT had no jurisdiction to deal with the matter. The EAT was successful in defending its jurisdiction in the High Court but on appeal the Supreme Court found in favour of the Government of Canada.

The Supreme Court analysed Article 29.3, relevant Irish and English jurisprudence, and relevant International Law. The Supreme Court (McCarthy J. and O’Flaherty J. concurring) held that the general principles of international law had developed so as to depart radically from the doctrine of absolute state immunity, in favour of much more restrictive view, which, nonetheless, allowed for state immunity in various circumstances.

McCarthy J. in describing the scope of the new doctrine of restrictive state immunity, observed: “It is, still, immunity but its application is restricted. I adopt the observations of Lord Wilberforce in Congreso del Partido [1983] A.C. 244 at 267 as being a correct statement of the current generally recognised principles of international law – one must decide ‘whether the relevant acts upon which the claim is based should, in that context, be considered as fairly within an area of activity, trading or commercial, or otherwise of a private law character…or whether’ it ‘should be considered as having been done outside that area, and within the sphere of governmental or sovereign activity”.

O’Flaherty J. opined that:

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

All three Judges of the Supreme Court were united in the view that Mr. Burke’s employment as a chauffeur fell squarely within the restricted doctrine of immunity.

McCarthy J. held that “the employment of an embassy chauffeur is not within a trading or commercial area activity”. He considered that a contract of employment or a contract of service is not a commercial transaction, unless it is done for the commercial purposes of a foreign mission.

O’Flaherty J. said the question was “Into which category does Mr. Burke’s claim fall, public or private?” and answered it as follows: “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.T.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 in this case.”

A modern distillation and application of these principles can be found in the recent WRC Case of Buthelezi v. Coy Dlamini and Thobeka Dlamini and The Republic of South Africa[4], where the Adjudication Officer observed that the leading case in the jurisdiction is Burke and that, arising from that case, the claimant had to establish the following:

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

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

(c) Do the facts of the matter bring it within the exceptions set out in the Convention?”[5]

The WRC had no hesitation in finding that the claimant’s employment – as domestic assistant and child minder - was private rather than public, and that her contract of employment was not for the commercial purposes of the foreign mission. The Convention referred to by the WRC was the Vienna Convention, which was engaged as a claim of diplomatic immunity was being made out. In the event, none of the exceptions set out in Article 31(1)(a) of that Convention arose.

Having made those findings, the WRC considered it was bound by the Supreme Court decision in Burke and had no jurisdiction to entertain the claimant’s claim.

A similar finding was made in Greene v. Government of United States of America[6]. In that case the Employment Appeals Tribunal considered that:“…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 U.S. government”.

It was held that the work of an Irish security guard employed at the U.S. embassy did touch upon the actual business or policy of the U.S. government. This decision was made in light of the reliance, trust and confidence placed in the claimant in his role as a security guard.

APPLICATION OF BURKE PRINCIPLES / DOCTRINE OF RESTRICTIVE IMMUNITY TO THE FACTS

It is respectfully submitted that when the Burke principles, as recognised and upheld in the cases of Buthelezi and Greene, are applied to the facts of this case, it is clear that the doctrine of restricted sovereign immunity applies.

The questions to be answered, per Buthelezi, are:

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

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

The answers to both are clear. The complainant’s claim is private, in that it concerned a contract of employment, and that contract of employment was not for any commercial purposes of the Kuwaiti embassy. Her work concerned the disbursement of funds by the named Government to its own nationals. It was a private contract of employment, and there was no commercial element to the activity in which she was engaged.

Applying the formulation used in Greene, the question is did her work touch upon the actual business or policy of the Kuwaiti government? The answer is yes. The provision of financial assistance to students of the named State by the Department of Higher Education is clearly a core part of the business and policy of the named government. To assist in the education of young students is clearly and obviously a function of the named government.

It is therefore respectfully submitted that, applying the appropriate test in Irish law to the facts of this case, the WRC has no jurisdiction to hear the Claimant’s claim, and it must be dismissed.

IMPACT OF THE 2004 UNITED NATIONS CONVENTION ON JURISDICTIONAL IMMUNITIES OF STATES AND THEIR PROPERTY

Ireland has not signed the 2004 Convention, but it is a settled principle of international law that even where a state has not signed or ratified a treaty, it may nonetheless be bound by one of its provisions in so far as that provision reflects customary international law.[7]

The question of the Convention was raised in Greene and both the parties and the EAT took that view as to its impact. Both parties submitted that the EAT had to have regard to its provisions insofar as they affected the state of customary international law, which is imported into Irish law by the provisions of Article 29.3 of the Constitution.

The relevant provisions of the 2004 Convention are contained in Article 11, which is headed “Contracts of Employment”. Article 11.1 provides that, 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.

However paragraph 2 goes on to provide that paragraph 1 does not apply in various circumstances. The exclusions relevant to this case are contained at 11.2(a) and 11.2 (f), which provide that a State may invoke immunity from jurisdiction in certain circumstances.

Article 11.2(a) provides that a State may invoke immunity from jurisdiction where: “(a) the employee has been recruited to perform particular functions in the exercise of governmental authority”

Article 11.2(a) was particularly relied upon in Greene, where the EAT made a finding of fact that the claimant, as a security guard, was recruited to perform a particular function in exercise of governmental authority, and that Article 11.2(a) was engaged on that basis.

It is respectfully submitted that the same consideration applies here, as the claimant was specifically recruited in order to assist in the provision of financial assistance to their students studying in Ireland, which is an exercise in governmental authority, and that therefore Article 11.2(a) applies in this matter.

It is also respectfully submitted that Article 11.2(f) applies in this case. It provides that the prohibition on an employer State invoking immunity from jurisdiction shall not apply where:

“(f) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject-matter of the proceeding”

The Claimant’s contract, which is headed “Employment Contract for Locally-Engaged Staff of Diplomatic Missions of the named State”, provides at Clause 6 thereof:

“6 – Any Dispute which may arise between the parties as to the implementations or interpretation of the contract shall be subject to the generally acknowledged principles of International Law.”

It can readily be seen how this Clause mirrors precisely the terminology used in Article 29.3 of the Irish Constitution. It clearly stipulates that principles of international law apply, which means, in the context of a contract of employment, that the doctrine of restricted sovereign immunity applies. Clearly this Clause permits the Employer State to invoke the doctrine of restricted sovereign immunity in relation to this contract.

As such, Article 11.2(f) of the Convention is engaged, as this is a case where the Employer State and the employee have agreed in writing that the Employer State may invoke the doctrine of restricted immunity from jurisdiction before the Irish courts in respect of this contract.

It is further respectfully submitted that no considerations of public policy confer exclusive jurisdiction in relation to this claim on the Irish courts, particularly where an application of law of the land in the shape of the Supreme Court’s Burke test will result in a finding of immunity.

It is therefore respectfully submitted that taking the provisions of the 2004 Convention into account, the within claim must be dismissed on the grounds of lack of jurisdiction.

SOVEREIGN/STATE IMMUNITY – Other Relevant Cases

In both Buthelezi and Greene, the claimants unsuccessfully sought to establish that the Burke principles had become outdated or had been superseded by case law concerning Article 6(1) of the European Convention on Human Rights, or by the contents of the United Nations Convention on Jurisdictional Immunities of States and their Property (2004).

While both Article 6(1) of the ECHR and the United Nations Convention of 2004 have some bearing on these matters, and in particular the 2004 Convention must be taken into account by the WRC, it is respectfully submitted that neither can, in this case, cause the Commission to derogate from the test as set out in Burke and applied in Buthelezi and Greene and the relevant cases should be distinguished on their facts. Further, the 2004 Convention, as set out above, in fact clearly supports a finding of no jurisdiction in this case.

In Buthelezi, the claimant placed particular reliance on the case of Cudak v Lithuania[8], where the claimant relied upon Article 6(1) of the ECHR in her claim against Lithuania. The claimant was a Lithuanian national employed in her home country by the embassy of Poland. Her employment contract specifically provided that she herself had to comply with the laws of Lithuania and any disputes arising under the contract were to be settled in accordance with the constitution of Lithuania and with Lithuanian legislation on employment contracts, labour remuneration, leave and employee social security.

The claimant had initially been subjected to sexual harassment in the workplace, and had brought a complaint against her employer to Lithuania’s Equal Opportunities Ombudsman, which was upheld. Thereafter she was dismissed from her position on grounds she felt to be spurious and she brought a second application for compensation for unfair dismissal. The Polish embassy then sought to rely upon sovereign immunity and her claim was struck out on the basis that the Lithuanian courts had no jurisdiction to entertain it. The European Court of Human Rights held that in the circumstances her right under Article 6(1) of the ECHR to access to a court had been infringed.

In Buthelezi, Cudak was distinguished on the grounds that it concerned a Lithuanian working under a contract of employment which specifically provided that the laws of Lithuania would apply, who was nonetheless denied access to the Lithuanian Courts, whereas the contract in Buthelezi granted no such rights.

It is respectfully submitted that Cudak must be distinguished in this case on the same grounds. In Cudak, the claimant expected, having regard to the terms of her contract, and also having regard to the fact that the Polish embassy had previous submitted to the jurisdiction of the Equal Opportunities Ombudsman, that the laws of Lithuania would apply and the courts of Lithuania would have jurisdiction.

Conversely, as noted above at paragraph 6.8 onwards, the Claimant’s contract specifically provides that the principles of international law apply, which in this case means that the doctrine of restrictive sovereign immunity may be invoked.

It is respectfully submitted that this is clearly a case where the terms of the contract itself expressly permit the employer to invoke restrictive sovereign immunity and take the matter out of the jurisdiction of the Irish Courts, and where both parties have dealt with each other on the basis that the doctrine of restricted sovereign immunity shall apply.

It is further noted that in Cudak, as in Fogarty,[9]the ECHR found that in limiting the claimant’s rights to the courts, the State enjoyed a margin of appreciation. Where the limitation was in pursuit of the legitimate aim of complying with international law to promote comity and good relations between States through the respect of another State’s sovereignty, the limitation would be legitimate if proportionate to that aim.[10]

The ECHR found that in the circumstances Lithuania’s approach was disproportionate to the aim, and therefore in breach of Article 6, in circumstances where Lithuania had effectively failed to keep up with developments concerning the erosion of absolute sovereign immunity, failing to take into account the nature of the claimant’s duties, and also failing to take into account the provisions of 2004 United Nations Convention on Jurisdictional Immunities of States and their Sovereignty. Like Ireland, Lithuania was not a signatory to the 2004 UN Convention, but it ought to have been taken into account as a reflection of customary international law.

Conversely, Irish law, encapsulated by the Burke test, set out above, does take into account the erosion of absolute sovereign immunity, and the nature of the claimant’s duties in each case in which it is applied. It is respectfully submitted that the application of the Burke test does not infringe upon Article 6.

Also, as set out at paragraph 6 above, the 2004 Convention in fact supports the view that the WRC has no jurisdiction in this matter.

On this basis, also, Cudak must be distinguished from the facts of this case.

The European Court of Human Rights case of Sabeh el Leil v. France[11] was also relied upon unsuccessfully by the claimant in Buthelezi. In that case the claimant was an accountant in the Embassy of Kuwait in Paris. When his employment was terminated he sought compensation in the Paris Employment Tribunal, where the respondent’s claim of immunity was rejected at first instance and he was awarded compensation. On appeal, that decision was set aside on the grounds that the autonomy enjoyed by the claimant in his duties meant that he carried out his activities in the interest of the public diplomatic service, and as such he participated in acts of “governmental authority”, and as a result under French law the respondent was entitled to jurisdictional immunity. An application to lodge an appeal to the Court of Cassation was rejected.

The claimant complained to the ECHR that his right to a fair hearing under Article 6 of the Convention had been unduly interfered with. The grounds of appeal criticised the Court of Appeal’s finding that he enjoyed a certain autonomy which meant that he carried out his activities in the interest of the public diplomatic service and participated in acts of governmental authority of the respondent State. Under French law, a foreign State could only enjoy immunity when the act giving rise to the dispute was an act “of governmental authority” or had been performed in the exercise of a public service.[12] He also relied upon the 2004 Convention.

The ECHR held that the restriction of the claimant’s right to access to a court had pursued a legitimate aim and the question was one of proportionality. The provisions of the 2004 Convention were also relevant. The ECHR held that the case did not fall within one of the exceptions to Clause 11 of that Convention as set out below. The ECHR further indicated that it had not been shown that the claimant’s duties could objectively be linked to the sovereign interests of the respondent state, and noted that the French courts had not given adequate reasons for so finding. The ECHR concluded that the French courts had dismissed the claimant’s claim without giving relevant and sufficient reasons, and notwithstanding the applicable provisions of international law, had failed to preserve a reasonable relationship of proportionality.

The decision of the ECHR in Sabeh must be distinguished from the present case firstly on the grounds that this case comes within the exceptions set out in the 2004 Convention at Clause 11 thereof, whereas Sabeh’s did not, and secondly on the grounds that the ECHR’s primary concern in Sabeh was the French courts’ failure to properly examine the facts of the case and apply French law correctly. It is clear that a proper application of the Burke principles, informed by the 2004 Convention, which is the approach taken by the WRC in Buthelezi and Greene, and the approach which the WRC is bound to adopt under Irish law, would not cause the same difficulties under Article 6 of the ECHR as arose in Sabeh.

Reliance was also placed in Buthelezi upon the decision of the CJEU in Mahamdia v. Peoples Democratic Republic of Algeria[13].

The WRC distinguished Mahamdia on the grounds that the case primarily concerned Regulation 44/2001, and on the grounds that the law in Germany differed from ours on this point and clearly granted the German courts jurisdiction over the employment contract in question. It is respectfully submitted that Mahamdia should be distinguished on the same grounds in this case.

OTHER RELEVANT IRISH CASES

The Respondent further relies upon the decisions in Italian Embassy v. Aideen Damery[14],Caffrey v. Institutio Cervantes[15], and Geraghty v. The Embassy of Mexico[16]

CONCLUSION

It is respectfully submitted that, in all the circumstances, this is a case where the proper application of the Burke principles, informed by the provisions of the 2004 United Nations Convention on Jurisdictional Immunities of States and their Property, will result in a finding that the WRC and the Irish courts have no jurisdiction to hear the Claimant’s claim.

In the circumstances, the named Government requests that Claimant’s claim be dismissed.

Complainant’s Position

The Complainant stated that she was one of the first three employees of this office. She set up the office. The office has an Irish tax register number. The office is not an embassy. There is an embassy and cultural office in London. She was paid in euro and paid tax in Ireland. All statutory deduction applied to her. She was a local employee. She was not advised that this was a sensitive role; it had the normal confidentiality of any job. Sovereign immunity should not apply and she should have the right to have her claim heard.

Findings and Conclusions:

1) Respondent Incorrectly Named

I note the Respondent’s position that the incorrect Respondent was named.

I note that the Respondent has consented to amend the title for the purposes of the preliminary issue only.

The correct legal entity is named on this decision.

2) Sovereign Immunity

I note that it is sovereign immunity, not diplomatic immunity that is being sought in this case.

“Sovereign immunity” may be defined as a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution. It is a principle of international law which exempts a sovereign state from the jurisdiction of foreign national courts.

“Diplomatic immunity “may be defined as the privilege of exemption from certain laws and taxes granted to diplomats by the state in which they are working.

I have considered the submissions made by both parties.

I have considered in particular the Respondent’s submission and its reliance upon the following cases in support of its position.

Government of Canada v. The Employment Appeals Tribunal and Brian Burke

Buthelezi v. Coy Dlamini and Thobeka Dlamini and The Republic of South Africa

Greene v. Government of United States of America

Dated:   24.10.2017

Key Words:

[1]Buthelezi v. Coy Dlamini and Thobeka Dlamini and The Republic of South Africa (DEC-E2016-105), at paragraph 11 (xiii)

[2] See, for example, the State Immunity Act, 1978, an Act of the British Parliament.

[3] [1992] 2 I.R. 485

[4] (DEC-E2016-105)

[5] At paragraph 11 (xiv) of the decision of Niamh O’Carroll Kelly, the Adjudication/Equality Officer, of the 19^th of July 2016.

[6] (UD289/2014, MN106/2014)

[7]Cudak v. Lithuania (2010) ECHR 15869/02, at paragraph 66 of the Judgment.

[8] (2010) ECHR 15869/02

[9]Fogarty v. United Kingdom [2002] 34 EHRR 12

[10] Paragraphs 60-62 of Cudak.

[11] 1 (2011) ILRL 781

[12] Paragraph 24 of the Judgment.

[13] (C-154/19^th July 2012)

[14] (EDA 04 17 December 2004)

[15] (UD 569/96)

[16] (UD899/97)