Complainant

Respondent

Anonymised Parties

An employee

An employer

Representatives

Stefan O'Connor Cullen Tyrrell & O'Beirne Solicitors

Ms Kiwana Ennis BL instructed by Coleman Legal Partners

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-00011948-001

16/06/2017

The Complainant was employed by the Respondent on 3rd September 2007 as an Academic Adviser. Her employment was terminated on 14th February 2017.

Preliminary Argument – Sovereign immunity conferred on Respondent.

The Respondent’s identity in this case has not been expressed accurately in the complaint form. The Respondent is in fact a Diplomatic Mission and is included on the list of such missions issued by the Department of Foreign Affairs on an annual basis.

It is the Respondent’s position that the WRC does not have jurisdiction to hear this case on the basis of sovereign immunity conferred on the Respondent and on this basis the Respondent intends to deal with the case by way of legal submission on this preliminary matter. The fact that the Respondent does not address the specific allegations made by the Complainant should not be taken as an admission by the Respondent to any allegations made by the Complainant.

The Respondent is not waiving its immunity and the submissions made 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. They are made entirely without prejudice to the immunity enjoyed by (name withheld) and the (name withheld) Embassy and to their rights in international law.

Basis for claim of Sovereign Immunity.

Article 29 (3) of the Constitution provides as follows:

“Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other states.”

In the case of Saorstát and Continental Steamship Co. v. de las Morenas [1945] IR 291 the Supreme Court ruled that “immunity of sovereign States and their rulers from the jurisdiction of the Courts of other States had long been recognised as a principle of international law” and so Article 29.3 “must now be accepted as a part of our municipal law”.

The issue was addressed again by the Supreme Court in Government of Canada v. EmploymentAppeals Tribunal and Burke [1992] 2 IR 484. The 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 for dismissal to the Employment Appeals Tribunal (the Tribunal). The Government of Canada attended solely to submit that the Tribunal 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 Tribunal went on to hear the application and made an award in favour of the claimant. The decision was challenged by way of judicial review on the basis that the Tribunal had no jurisdiction to deal with the matter. Although the challenge was unsuccessful in the High Court, on appeal the Supreme Court found in favour of the Government of Canada.

The Supreme Court upheld the doctrine of sovereign immunity although it took the view that the doctrine was no longer as extensive as it had been in 1945. O’Flaherty J. held that the generally recognised principles of international law were capable of developing over time and that in the instant case, the absolute state immunity doctrine recognised in Saorstát and Continental Steamship Co. v. de las Morenas had been replaced by a much more restrictive view of sovereign immunity, limited to acts within the sphere of governmental or sovereign activity and inapplicable to activities of a commercial or otherwise private law nature.

O’Flaherty J. stated that:

“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”.

The United Nations Convention on Jurisdictional Immunities of States and Their Property 2004(2004 Convention) is relevant to this issue as it applies to the immunity of a State and its property from the jurisdiction of the courts of another State. Notwithstanding that Ireland is not a party to the Convention, it is considered as forming part of customary international law applied in Ireland. Article 11 provides:

“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”.

The Respondent relies on Burke and the 2004 UN Convention to ground its claim to sovereign immunity in respect to the Complainant’s claim for unfair dismissal.

Preliminary Issue.

1.       The identity of the employer does not make it an embassy. The identity of the employer on the P45 does not suggest that it was an embassy.

2.       The Complainant was employed in a straightforward administration capacity.

3.       The dismissal was unfair.

Preliminary Issue – Does Sovereign Immunity Apply?

The answer to this question is to be found in the Complainant’s job description.

At hearing, it was stated that the Complainant’s duties included the following:

·         During her period of employment as an Academic Advisor, the Complainant’s duties essentially concerned the provision of financial support by (name withheld) to (name withheld) students studying in Ireland. As such, she held a position of significant responsibility and trust as she handled funds belonging to the Respondent and disbursed them to (name withheld) nationals living and studying in Ireland. Her signature was required on all documents in order to validate the release of the financial transactions involving sums in excess of seven figures annually.

·         In addition, the Complainant performed highly duties in that she officially represented the Respondent on various missions including conducting negotiations with entities and organisations within Ireland on behalf of the Respondent.

·         The Complainant carried out authorisation, certification and notarisation duties in respect of official transcripts and degree certificates of students using the official seal of the Respondent.

·         The Complainant had full access and security clearance to access remotely the Respondent’s database which included sensitive data on (name withheld) citizens.

·         The Complainant represented the Respondent and the Embassy on many occasions in different universities attending conferring ceremonies, meetings and appeals committee meetings.

·         In 2008, a decree issued by (name withheld) authorised the Complainant to conduct an official mission to a leading Irish university.

·         By (name withheld) Ministerial Decree of 2012 the Complainant was appointed a member of the academic committee which is an executive committee and the central decision-making committee in respect to the Respondent’s Embassy in Ireland.

·         By decree in 2014 the Complainant was authorised to carry out an official mission to the Headquarters in (name withheld).

·         In 2016 the Complainant was assigned to an official mission to visit a leading Irish university to attempt to re-establish the relationship with the university.

It is clear from the foregoing that the Complainant was deeply involved in the activities of the Respondent’s Embassy in Ireland.

In Government of Canada v. EmploymentAppeals Tribunal and Burke [1992] 2 IR 484.

O’Flaherty J. states

“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”.

In this instant case, there is only one answer to this question - the activity undertaken by the Complainant was core to the business of the Respondent.

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 therefore I do not have jurisdiction to hear the complaint.

For the reasons stated above, I do not have jurisdiction to hear this complaint.

Sovereign / state immunity.