ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00008370

Parties:

	Complainant	Respondent
Anonymised Parties	An Accountant	A Diplomatic Mission

Representatives

Tim Dixon B.L. instructed by Coleman Legal Partners

Complaint:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00011053-001	30/04/2017

Date of Adjudication Hearing: 14/12/2017

Workplace Relations Commission Adjudication Officer: Pat Brady

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:

The complainant was employed by the respondent as an accountant between June 2013 and February 2017 on a salary of €2,640.45 monthly.

Adjudicator’s Note; The requirements of confidentiality mean that the respondent cannot be identified. There is also a dispute about the identity of the correct respondent. Therefore, for convenience I have used the terms Parent Government or State, and even respondent somewhat loosely to cover all references to the State and its embassy which is the subject of the complaint. This will be clear from the context.

Summary of Respondent’s Case:

Preliminary Matters

The respondent does not dispute that the dismissal happened largely along the lines outlined by the complainant but states that the complainant was given two months’ pay in lieu of notice.

However, it asserts state/sovereign immunity in respect of the complaint and says that the WRC does not have jurisdiction to hear it.

It also states that the respondent named by the complainant is not a legal entity and is not therefore properly a respondent. The complainant has named the embassy’s ‘Cultural Office’ as the respondent but there is no such legal entity.

While this was the complainant’s place of work it is but a division of the embassy.

The complainant is not an employee as he invoiced for his services and was not a PAYE employee.

His contract of employment was with the parent Government and was terminated following severe disciplinary difficulties, which resulted in a breakdown in trust and confidence. It ended on the basis of written notice and in accordance with its term

The contract was signed on June 7th 2013 and included a provision that any dispute arising between the parties as to implementation or interpretation of the contract shall be subject to the generally accepted principles of international law, which are defined in the ‘Locally Engaged Staff Regulation’ as being subject to the provisions of the national law of the parent state.

The principle of foreign state immunity is recognised in Article 29.3 of the Irish Constitution and while the respondent notes that the principle of absolute state immunity has been eroded it states that any deviation must be carefully considered and the respondent relies on the doctrine of restrictive state immunity.

It relied on Government of Canada v. The Employment Appeals Tribunal and Brian Burke [1992] 2I.R. 485 in which the jurisdiction of the EAT to hear the case of a dismissed chauffeur was challenged.

The court upheld the jurisdiction of the Tribunal but the decision to terminate was, in due course, overturned in the Supreme Court.

The court held, per McCarthy J. (adopting the dicta of Lord Wilberforce in Congreso del Partido [1983] A.C. 244 at 267 that it must decide;

‘whether the relevant acts upon which the claim is based should, in that context, be considered 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 government or sovereign activity’.

The court held unanimously that a chauffeur fell within the restricted doctrine of immunity on the basis that any employee of a diplomatic mission falls;

‘within a bond with his employers that has the effect of involving him in the employing government’s public business….’

Per O’Flaherty J.

This was followed in Buthelezi v. Coy Dlamini and Thobeka Dlamini and The Republic of South Africa DEC-E2016-105 where three tests were identified.

Is the category public or private?

Is the contract of employment or service for the commercial purposes of the embassy?

Do the facts of the matter bring it within the exceptions set out in the Vienna Convention?

In that case, involving a childminder the Adjudication/Equality Officer held that she did not have jurisdiction to hear the case.

Finally, in Greene v. Government of United States of America [UD 289/2014, MN 106/201] the activities of a security guard were held to touch upon the actual business or policy of the US government.

In applying the Burke principles to the current complaint, the respondent submits that the doctrine of restricted sovereign immunity applies.

The complainant was engaged primarily in the disbursement of financial support (running to ‘many millions’) to nationals of the respondent home state studying in Ireland.

Therefore, he was engaged in the business of the parent government in Ireland. This work is entirely public and involved no private aspect.

Summary of Complainant’s Case:

The complainant says that he was dismissed without notice and in breach of his right to fair procedures.

A new manager took over on August 21st, 2016 and he was aggressive and removed the complainant from his office, denying him access to his files.

On February 1st 2017 he was approached by that manager, handed a letter of dismissal and ordered to leave the premises.

The complainant asked for an explanation but was not given one.

He had not been the subject of any previous disciplinary procedures or warnings.

Findings and Conclusions:

Preliminary Matters

The respondent has raised three preliminary matters; the first that the respondent has been incorrectly identified, and the second that, in any event, the respondent is protected by the doctrine of sovereign immunity, even in its restricted form.

The third is whether the complainant is an employee for the purposes of the Unfair Dismissal Act, 1977.

In respect of the first of these the contract was with the Government of the parent state and contained provisions for the processing of disputes arising under its national law.

By far, the most significant issue is whether jurisdiction exists to hear any case on the basis that the respondent, however identified is protected by sovereign immunity.

“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 in particular the Respondent’s submission and its reliance upon the following, very significant authorities in support of its position, and the submissions arising from these cases in their application to the current case.

The complainant was not legally represented and made no counter submissions. The cases are;

Government of Canada v. The Employment Appeals Tribunal and Brian Burke [1992] 2I.R. 485

Buthelezi v. Coy Dlamini and Thobeka Dlamini and The Republic of South Africa DEC-E2016-105

Greene v. Government of United States of America [UD 289/2014, MN 106/201]

As submitted by the respondent the test laid down in Government of Canada by McCarthy J. (adopting the dicta of Lord Wilberforce in Congreso del Partido [1983] A.C. 244 at 267 is that it must decide;

This questions were formulated by my colleague Adjudicator in Buthelezi as;

1) Is the category public or private?

2) Is the contract of employment or service for the commercial purposes of the embassy?

3) Do the facts of the matter bring it within the exceptions set out in the Vienna Convention?

So, the test turns on the nature of the work carried out by a complainant and whether it is part of the government’s official duties or a ‘private’ or commercial purpose.

The complainant in Government of Canada was a chauffeur. In concluding that the doctrine of absolute state immunity no longer existed it nonetheless found that a restrictive form of immunity did.

This was described by Flaherty J. in Government of Canada as activity which, if it;

‘Truly touches the actual business or policy of the foreign government then immunity shall still apply.’

The court believed that the work of the chauffeur was brought within the scope of immunity as;

‘the element of trust and confidentiality that is reposed in the driver of an embassy car creates a bond that has the effect of involving him in the employing government’s public business and interests’.

In Buthelezi, the Adjudicator found that a domestic assistant and child minder was private rather than public and her contract was not for the commercial purposes of the foreign mission and followed the decision in Government of Canada.

In Greene v Government of United States of America (op cit) the complainant was a security guard and this was held to touch on the actual business and policy of the US Government in light of the reliance, trust and confidence placed in him in his role as a security guard

The respondent has submitted that the complainant falls within these tests as he was not engaged on a contract of employment for any commercial purposes, and that the provision of financial assistance originating in the parent government’s Department of Higher Education to its nationals who are studying in Ireland is a core part of the business and policy of the government.

There can be little argument with the proposition that the provision of education to its citizens falls within the definition of ‘the actual business and policy of a government’, when it is delivered in a third country, as referred to above by Flaherty J.

The doctrine of sovereign immunity may now be a restricted one but on the basis of the authorities before me I find that the complainant falls within the criteria set out there and that I therefore do not have jurisdiction to hear the complaint

I am further convinced on this point by the terms of the complainant’s contract which specified that any dispute arising from it fell to be dealt with by the national law of the parent government, and indeed the complainant acquiesced in this by making a complaint under its terms.

In the circumstances, the status of the complainant’s contract of employment does not arise.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

For the reasons set out above complaint CA-00011053-001 is not within jurisdiction and it is not upheld.

Dated: 31 July, 2018

Workplace Relations Commission Adjudication Officer: Pat Brady

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