ADJ-00011995

Complainant

Respondent

Anonymised Parties

Academic Adviser

An Embassy

Representatives

Femi Daniyan BL, instructed by Kevin Tunney Solicitors

Peter Shanley BL, Patrick O'Neill of Patrick O'Neill & Co Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00015821-001

15/11/2017

The Complainant was employed as an Academic Adviser /Academic Affairs from 17th June 2013 to 17th June 2017 on yearly contracts. She was paid €2,800 per month. She has claimed that she was discriminated against on grounds of her religion.

The Respondent has raised a preliminary point concerning jurisdiction. They are claiming that the Workplace Relations Commission has no jurisdiction to hear this case on the grounds of sovereign immunity.

It was agreed to deal with the preliminary point only and that the Adjudication Officer would issue a decision that was appealable to the Labour Court by either party.

This Complainant has brought this claim under the Employment Equality Acts, claiming that her employment with the Respondent was terminated by the Respondent owing to her religious belief.

The Respondent vehemently denies this totally unfounded allegation. However, without prejudice to this, the Respondent wishes to have the preliminary issue of whether the Workplace Relations Commission has jurisdiction to hear the claim, having regard to the principle of sovereign immunity.

The Respondent is a diplomatic mission which represents the Respondent through its diplomatic and consular offices in Ireland. As such, the Respondent enjoys the benefit of the doctrine of sovereign immunity.

It is an important government strategy and policy of the Respondent to provide educational and cultural opportunities for its citizens in other countries around the world. The Scholarship Scheme, was established to provide financial scholarships for such students. Due to the importance of the Scholarship Scheme in giving effect to the government educational and cultural strategy and policy there is a separate Minister for Scholarship Affairs. The operation of the government strategy and policy is carried out through Cultural Bureaus which fall under the remit of the Embassy in the host countries. The number of the cultural missions abroad increased from 24 in 2005 to 33 in 2010 and students were placed in more than 25 countries in the world. The Embassy and Cultural Bureau in Ireland were established during this period. The Embassy in Dublin was officially opened in September 2009. At that time there were a few dozen citizens studying in Ireland. The Cultural Bureau opened in Dublin shortly afterwards and the number of students studying in Ireland increased dramatically. This was due to the government’s strategic educational and cultural policy. The importance of the government education and cultural strategy and policy is demonstrated by the fact that in 2014 the Cultural Bureau purchased a 28,000-square foot office block for their operations. It is headed by the Cultural Attaché who is one of the most senior diplomats in its mission in Ireland. There is currently a full-time deployment of 14 diplomats working at the Cultural Bureau. There are currently in excess of 1,200 students of the respondent country studying in Ireland the vast majority of who avail of the Scholarship Scheme. The Cultural Bureau gives effect to the government’s policy concerning education and culture which is perhaps the most important business of the government in Ireland. Other than Embassies, the Cultural Bureau is one of a very small number of dedicated offices opened by foreign governments in Ireland which are tasked with implementing official government policy. This involves, inter alia, dealing with the Ministry of Foreign Affairs and the Ministry of Education on policy issues; working closely with the Embassy in Dublin; dealing with colleges around the country on matters such as admission policies and fee arrangements for the students; arranging payments under the Scholarship Scheme; assisting students with academic, personal and medical issues; dealing with the Garda National Immigration Bureau and the Department of Justice concerning immigration and visa issues; and, settling agendas and organising high level meetings between the Minister for Education and the Irish Minister for Education concerning educational policies and cooperation between the two countries.    

Complainants Employment

The Complainant’s employment can be categorised under two headings. Firstly, she was an Academic Advisor and, secondly, she dealt with Academic Affairs.

As an Academic Advisor the Complainant had 91 students under her control. Her duties and responsibilities included, inter alia, dealing with the Technical and Vocational Training Corporation, which is a governmental body, concerning student approvals to come to Ireland; meeting students upon arrival in Ireland; organising scholarship payments to students; dealing with colleges for information to assess students and prepare academic reports; preparing academic reports and assessing whether to continue or stop scholarship payments based on performance; assessing and deciding whether students dependents should receive financial allowances or not; approving tuition fees and payments to colleges; and dealing with the Garda National Immigration Bureau and the Department of Justice concerning immigration and visa issues.   The Complainant worked in Academic Affairs towards the end of her employment. Academic Affairs includes, inter alia, working as part of a team of four, one of whom is the Head of Academic Affairs who is a diplomat who heads the team; negotiating tuition fees and student numbers with colleges and English language schools; meetings with the Cultural Attaché who is head of the Cultural Bureau to update him with any issues arising and for him to update the team on strategy and policy issues; organising appointments between the Cultural Attaché and colleges and agreeing the agenda for such meetings; following up issues arising following such meetings. During her time at the Cultural Bureau she was briefed on the details of an important new government initiative to send teachers (not students) to train in Ireland. She was to contact colleges in Ireland about the programme and had started this process before leaving the Cultural Bureau. As part of her work the Complainant had computer access to financial information relating to the Scholarship Scheme; she had authority to make decisions concerning payments to students and their dependents; she worked under the Head of Academic Affairs; and she was privy to sensitive information concerning the policies of the Cultural Bureau in dealings with colleges, the Garda National Immigration Bureau and the Department of Justice.

Relevant Contract Term  

Article 19 of the Complainants employment contract provides that it is a contract for one year. She was not offered a renewal when her contract for one year expired on 17th June 2017. The Complainant was informed in writing that her contract was not being renewed.

 Applicable Law

In the case of The Government of Canada v The Employment Appeals Tribunal[1], the Supreme Court considered the doctrine of sovereign immunity: “The doctrine of sovereign immunity is one of the generally recognised principles of international law which, by Article 29, s. 3 of the Constitution, Ireland has accepted as its rule of conduct in its relations with other states. I see no reason to differ from the view expressed on the general position by O'Byrne J. in  Saorstát and Continental Steamship Company v. De las Morenas  [1945] I.R. 291 at 298, where he states:— "The immunity of sovereign states and their rulers from the jurisdiction of the courts of other states has long been recognised as a principle of international law and must now be accepted as part of our municipal law by reason of Article 29, para. 3 of our Constitution which provides that Ireland accepts the generally recognised principals of international law as its rule of conduct in its relations with other States."

It is to be noted that the Oireachtas has never sought to qualify or to modify this position. 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.”[2]

O’Flaherty J, giving the leading judgment of the court, concluded (having reviewed in some detail the development of the doctrine of sovereign immunity) as follows: “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.”[3]

On the facts of that case, the Supreme Court held that an employment contract with the Ambassadors chauffeur at the Canadian Embassy is clearly not a commercial contract in the ordinary sense of the word… “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.”[4]

As a Supreme Court authority, the Canadian Embassy case is binding on the Workplace Relations Commission, as it was on the Employment Appeals Tribunal when it was followed in Damery v The Italian Embassy[5][TAB 6]. In that case it was decided that the secretarial work carried out by the complainant was of a nature that had created an element of trust and confidentiality to such an extent that the complainant was a participating in the public acts of the Italian state and that the doctrine of restrictive sovereign immunity applied. In Geraghty v The Embassy of Mexico[6][TAB 7]it was decided that, in the case of a claim for unfair dismissal by a secretary working in the Mexican Embassy, the principle of sovereign immunity operated to deprive the Employment Appeals Tribunal of jurisdiction to hear the matter.

This issue was examined in 2015 by the Workplace Relations Commission in the case of John Greene v The Government of the United States of America[7]. In that case the complainant commenced employment as a security guard on 4th April 2005 at the respondents Embassy in Ballsbridge, Dublin. 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. He was dismissed on 19th September 2013. The respondent stated that it had sovereign immunity and therefore the tribunal did not have jurisdiction to hear the substantive matter. The Employment Appeals Tribunal heard arguments in respect of the preliminary issue as to whether or not it had jurisdiction to deal with the substantive case.

In reaching its conclusion that it did not have jurisdiction to deal with the claim, due to the operation of the doctrine of restrictive State Immunity, the Employment Appeals Tribunal made reference to the Supreme Court decisions of Government of Canada v The Employment Appeals Tribunal[8] and McElhinney v Williams[9]. It also had regard to the United Nations Convention on Jurisdictional Immunities of States and their Property 2004, which (although Ireland is not a signatory) should be considered as forming part of customary International Law (and therefore a matter that should be considered: see Article 29.3 of the Constitution).

Article 11(2)(a) of the United Nations Convention on Jurisdictional Immunities of States and their Property 2004 reiterates the proposition that a State can invoke immunity from jurisdiction before the court of another State in respect of proceedings relating to a contract of employment where the employee has been recruited to perform particular functions in the exercise of governmental authority.

Furthermore, Article 11(2)(c) makes it clear that where the subject of the proceedings is the renewal of employment (as in the instant case) a State can invoke immunity from jurisdiction before the court of another State.

Ultimately, having regard to the relevant legal principles and the fact that as a security guard at the embassy and at the ambassador’s residence, the claimant’s role involved performing functions in the exercise of government authority, the Employment Appeals Tribunal determined that the doctrine of Restrictive State Immunity applied and the tribunal had no jurisdiction to hear the claim.

It is worth noting that, as the name suggests, restrictive state immunity is not absolute. For example, in a recent case involving three women from the Philippines who had been working at the residence of the Ambassador to Ireland of the United Arab Emirates, the EAT[10] found that "all three appellants’ functions as a nanny / domestic help in the respondent's private residence did not fall ‘within the restricted form of state immunity’ as considered in the Canadian case nor did their position involve them ‘within the exercise of public powers’ according to the test set out in Mahamdia” [TAB 12].

Conclusion

It is submitted that following the principles above the Respondent has sovereign immunity in respect of the Complaint herein on a number of grounds:

(a)     the Complainants employment truly touched upon the actual business or policy of the government as set out in the Canadian case; 

(b)     the Complainants employment also gave rise to an element of trust and confidentiality which created a bond between her and her employer that had the effect of involving her in the governments public business organisation and interests as set out in the Canadian case; 

(c)      similarly, the Complainants employment was of a nature that crated an element of trust and confidentiality to the extent that she was participating in the public acts of the government as set out in the Damery case;

(d)     the Complainant had been employed to perform particular functions in the exercise of governmental authority as set out in Article 11(2)(a) of the United Nations Convention on Jurisdictional Immunities and their Property 2004;

(e)     the Complainants employment for one year had come to an end and was not renewed as is provided for in Article 11(2)(c) of the United Nations Convention on Jurisdictional Immunities and their Property 2004;

(f)       the Complainants employment involved performing functions in the exercise of government authority as set out in the John Greene case;

The functions carried out by the Cultural Bureau are central to the governmentspublic business, organisation and interests, and the work of the Complainant herein was an integral part of those functions, her one year contract had also come to an end and was not renewed, therefore the doctrine of restrictive state immunity applies in this case and the Workplace Relations Commission ought to decline jurisdiction to hear the claim.

Background:

The Respondent’s submissions are within the knowledge of the Respondent only and cannot be verified. It is accepted without prejudice save that as far as the Complainant was aware there was no Ministry of Scholarship Affairs, however, there was a Scholarship Commission within the Ministry of Education.

Complainant’s Employment

In the Respondent’s submissions, it is stated that the Complainant worked as an academic advisor and academic coordinator. By way of clarification, the Complainant worked as an academic advisor from the 17th of June 2013 till the beginning of February 2017 and then worked as an academic coordinator for 8 or 9 weeks thereafter. The Complainant did not make any decisions in respect of student approval to come to Ireland from the Respondent State as the students entitlements were already decided before the students arrive in Ireland. In respect of the Complainant’s employment with the Respondent, the complainant asserts that she was never part of the Respondent’s decision making process nor did she have any authority in her roles. Furthermore, the nature of her position did not involve any element of trust and confidentiality. The office that she occupied was separate and apart from the Respondent’s diplomatic employee offices. The Complainant was not privy to any confidential or sensitive information of the Respondent employer. The majority of the cultural attaché staff were not citizens of the Respondent State and their duties were minimal and peripheral in nature. They were kept separate and apart from the Respondent’s diplomatic officials.

When the Complainant began her second position as academic coordinator, she had no access to any system and was not able to access any information. Her duties included basically sending one electronic mail or two each day and also searching the internet for some information regarding projects her superior was dealing with at that time. Her duties included the creating a reward request for students so that, if a student is a high achiever they are rewarded and a warning request was issued if they are not. She would then proceed to send these requests to the senior academic advisor who would check them and send them to the head of the academic department for either approval or rejection. The only requests or tasks that the academic advisor is able to work on are as follows:

A) Add an academic report after checking it.

b) Update student’s information on the system.

c) Imputing students’ qualification on the system

d) Inquiry request such as answering students’ questions about different issues related to their study.

e) A letter request which can be either for general purposes or to the immigration office (it is a confirmation letter like the one any student gets from their university through the online portal). In this regard, the Complainant’s duty is to make sure that the student is fully enrolled into his chosen course and has no obstacles that might prevent him from continuing his study. After checking these matters, the Complainant would click a button to print the pre-formatted letter which then is sent along with other letters to the senior academic advisor for checking then to the head of the department to recheck and finally to the cultural attaché to be signed and the Complainant then sends it to the student by post.

f) The Complainant also had a duty of processing a financial guarantee request in which the Complainant would check the student’s eligibility to obtain admission in a full time course, or that they have passed the year before and that they have a copy of their latest report and other related matters. After checking these matters, the Complainant would fill a form of the financial guarantee which then gets checked by a colleague and then passed on to the senior academic advisor for checking then to the head of the department to recheck it and finally to the cultural attaché to be approved and signed and then sent to the student by electronic mail. Regarding the rest of the requests, the Complainant would write a report about the student’s academic progress from the time they start their study then send the request to the senior advisor. The Complainant was not involved in any decision making or policy formulation through-out her employment with the Respondent.

Further she started her employment with the Respondent in 2013. At that time she worked with more than 300 students. There were 150 from the Technical and Vocational Training Corporation which is another of the Respondent’s organ that sends its employees who are mainly teachers and who hold a level 7 degrees to continue their studies here in Ireland. They would often begin with a language course and once they reach an adequate level of English, they would start their chosen courses which last for two years on average. Upon completion of the university requirements and examination, they are then awarded a bachelor degree in their subject area. Should they have any requests while they were in the state, they would send same to the Complainant which the Complainant would forward to the Technical and Vocational Training Corporation for a decision. Under no circumstances had the Complainant any direct contact with any departments or persons in the Respondent State. The Complainant was not allowed or able to do so. The Complainant was only dealing with that portal (tool) through which these requests came and there were no paper requests or correspondences. Throughout the following three years the number of students that the Complainant had to deal with had fallen to 180 students. The Complainant was not involves in any policy or decision making functions of the Respondent.

In respect the Respondent’s submissions, it is stated that the Complainant had computer access to financial information relating to the scholarship scheme. The Complainant used the tool (portal) to receive the students’ requests and that is the only information that she had access to and not to the scholarship scheme itself. The system would show the Complainant if the students had received their monthly allowance or not. This involved the Complainant escalating whether or not the students had received their allowances. In some circumstances, the Complainant would advise a student to contact the financial department to resolve their difficulty. The foregoing issues relating to the tuition fees would be the only financial information the Complainant had access to. The Complainant never had the authority to make decisions concerning the payments to the students or their dependents. The whole employment structure of the cultural bureau would not permit a person who was not a citizen of the Respondent Country to have any decision or policy making roles in any such matters. Any sensitive information would have been dealt with by the diplomats or the senior academic advisor. The Respondent has never been in direct contact with the Garda National Immigration Bureau or the Department of Justice neither in person nor by electronic mail or telephone. Ms. X was the Legal advisor who was responsible for these issues and after her, Ms. Y took over the responsibility. 

In respect of the Respondent’s Submissions, the Complainant had been moved to the Academic Coordination Department at the end of February. She was one of four in that department. She had nothing to do with English schools as this was another colleague’s responsibility and he was dealing with all matters related to the English schools including tuition fees. The Complainant was not negotiating college fees as stated in the Respondent’s submissions. In this regard reference is made to the above link which includes an article published on the 4th of May 2016, in relation to the teachers training program and stating that the Respondent will send teachers to 9 countries and explaining the criteria and eligibility. In this regard, I refer to an article from the cultural office in the USA stating that the first phase of the teachers training program had finished successfully in November 2017 which meant that the program was not new and was finished at the time the Complainant began her final role with the Respondent. The fourth link is an article published on the 08/12/2017 with the heading “Respondent teachers bring Finnish education knowledge back to home” which stated that they have finished their training by December 2017 which means that they had started during the first few months of that year. There is also a PDF document published online stating that the Respondent State will send 1020 teachers to 9 countries and listing the number of male and female teachers from each city, also the number of principals and supervisors. It also has the application form and the eligibility criteria published online. The whole project was assigned to one Ms. D who was in contact with the colleges, the only thing that the Complainant had been involved with regarding this project was emailing one college regarding adding a cover page to the document and changing the font of a document (attached is a copy of the email). The Complainant was never involved in the details of the contract with the colleges and that was upon her superior’s request. The contact with the colleges has already started on the 17th of August 2016 which was well before the Complainant moved to her subsequent position with the Respondent. In this regard, there was no aspect of the Complainant’s employment that was confidential or sensitive as the information she was privy to was published online and in newspapers. 

In circumstances where many of the issues raised in the forgoing paragraphs are matter for evidence, the Complainant herself will attend the Work Place Relations Commission on the 16th day of July 2018 and will give evidence in this regard.

 Legal Submissions

The Vienna Convention on Diplomatic Relations of 1961 (“the Convention”) provides that a diplomatic agent enjoys immunity from the criminal, civil and administrative jurisdiction of the receiving State. This has force of law in Ireland by virtue of the Diplomatic Relations and Immunities Act 1967. There are exceptions including actions for private immovable property, actions relating to succession and “an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official function”.

Sovereign immunity differs from diplomatic immunity in that it concerns the foreign state itself rather than a diplomatic agent. Sovereign immunity is a fundamental part of Irish law and implemented into the Constitution by virtue of the provisions of 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”. 

 Decided Irish Case law

In Saorstát and Continental Steam Ship Company v De Las Morenas [1945] IR 291, the Supreme Court decided that the “immunity of sovereign States and their rulers from the jurisdiction of the Courts of other States” had “long been recognised as a principal of international law” and so by Article 29.3 “must now be accepted as a part of our municipal law”.

The doctrine was considered by the Supreme Court in the case of The Government of Canada v Employment Appeals Tribunal and Burke [1992] 2 IR 484. The Supreme Court concluded that “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 Supreme Court went on to find that the employment of a chauffeur working in the Canadian Embassy was not a normal commercial contract but a contract of service and therefore the Embassy was entitled to rely on the principle of sovereign immunity in a claim brought by the employee to the Employment Appeals Tribunal (“EAT”).

 European Developments

Recent developments in the European Courts (e.g. Cudak v Lithuania (2010) ECHR 15869/02, Sabeh El Leil v France (2011) ECHR 34869/05 and Mahamdia v Peoples Democratic republic of Algeria (2012) C-154/11) have shown that absolute sovereign immunity no longer applies.

In the Cudak case, Ms Cudak was employed as a switchboard operator for the Polish Embassy in Vilnius. After the courts of Lithuania declined jurisdiction based on sovereign immunity, she took a claim to the European Court of Human Rights (“ECHR”). The ECHR decided that immunity applied in employment related cases of diplomatic and consular staff. However, Ms Cudak had not performed any particular functions closely related to the exercise of governmental authority or related to the exercise of sovereignty by the Polish State and therefore, sovereign immunity did not apply. The mere possibility that she had access to documents and had been privy to confidential phone calls was not sufficient for sovereign immunity to apply.  

The Sabeh case involved an employee who was the head accountant of the Kuwaiti Embassy in Paris. The ECHR decided that the application of state immunity had been eroded. In this case, there was nothing to prove that the employee’s work entered the public sphere and therefore, sovereign immunity did not apply.

The Mahamdia case concerned a dispute between the Algerian Embassy in Germany and its former chauffeur who had been dismissed. A reference was made to the Court of Justice of the European Union (“CJEU”) by the German courts. The CJEU decided that immunity from jurisdiction is not absolute and may be excluded if the legal proceedings relate to acts that do not fall within the exercise of public powers such as this case. Furthermore, the CJEU found that the Algerian Embassy could not use an agreement on jurisdiction concluded before the dispute arose to impose its own jurisdiction on the complainant.  

Inevitably these European cases have been followed in this jurisdiction. The 2014 case of United Arab Emirates (Myra Calderon, Laylanie Laporga, Jennifer Villaranda v Khalid Nasser Rashed Lootah and Mahra Metad Alghubaisi UD1219/2013, UD1220/2013, UD1221/2013), which involved three women from the Philippines who had been working in the home of the Ambassador to Ireland of the United Arab Emirates. The EAT found that “all three appellants ‘functions as a Nanny/Domestic Help in the respondent’s private residence did not fall ‘within the restricted form of state immunity’ as considered in the Canadian case nor did their position involve them ‘within the exercise of public powers’ according to the test set out in Mahamdia”.

The EAT went on to find in favour of the three workers and awarded them €80,000 each as a result of “a complete non-adherence to any of the appellants’ employment rights”.  

It is submitted that that the ability of foreign agents/missions in this country and other countries in Europe to rely on diplomatic/sovereign immunity in relation to employment matters is no longer absolute and each case will have to be considered in light of its own facts. Moreover foreign agents/ missions will have to take the laws of the receiving state into consideration prior to entering into any employment arrangement in order to avoid potential claims.

In the case of Adan and the Embassy of the Republic of Kenya (RP2775/2011, UD2163/2011, MN2199/2011, WT882/2011), an employee of the Kenyan Embassy in Dublin was awarded €44,200 in compensation by the Employment Appeals Tribunal, after it concluded that the Embassy could not claim diplomatic immunity in respect of the dismissal of the employee concerned. The claimant, Asha Adan, started work as a cleaner in November 2007. She signed a contract for every year of her employment. In May 2011, she informed her employer that she was pregnant. Her employer subsequently asked her to lift a heavy item and she informed her that she could not do so due to her pregnancy.

On May 30th 2011, her employer informed her that May 31st would be her last day of employment. She was brought to dinner by the respondent and told that she would have to re-apply for her job and attend for interview.

On July 2th 2011, she was informed that she had not been selected for the position of cultural affairs clerk/cleaner. She did not obtain alternative employment after her dismissal. The Tribunal dealt first with the issue of representation: “The respondent was notified of the hearing by registered post on the 25th February 2013. The Tribunal is satisfied that delivery was effected and that the registered letter was not returned. The Tribunal did not receive a notice of appearance or any response from the respondent. There was no appearance by or on behalf of the respondent at the hearing.”

It noted that under the Unfair Dismissals Acts, 1997 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 grounds of sovereign immunity. “In this particular case, the respondent chose to do neither,” the Tribunal observed. “In such circumstances, it is our view that it is not only inappropriate for the Tribunal to ‘step into the shores’ of the Kenyan Embassy and plead sovereign immunity on its behalf, but it would be grossly unfair on the claimant to do so.”

In a case by An Accountant against the Kuwait Cultural Office in Ireland (ADJ-00004363, AO: unnamed), the Workplace Relations Commission has ruled an accountant working at the cultural office of the Kingdom of Kuwait in Ireland is entitled to bring a claim for unfair dismissal.

At the heart of this case was the question whether the respondent was in a position to invoke sovereign or state immunity under Irish law in respect of the claim. According to the respondent, 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.


The Respondent contended that the claimant’s contract 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.”


According to the claimant, she set up the office which has an Irish tax register number. The office is not an embassy – the Kuwaiti embassy is located in London. She was paid in Euro and paid her taxes in Ireland. She was a local employee. She was not advised that this was a sensitive role, though the normal duties of confidentiality did apply. In her view, sovereign immunity did not apply. She had the right to have her claim heard.


The Adjudication Officer turned to the core issue: the entitlement of the respondent in these proceedings to claim sovereign immunity, the principle of international law which exempts a state from the jurisdiction of foreign national courts.


The Adjudication Officer referred to the decision of the European Court of Human Rights in Cudak v Lithuania (2010). The claimant in the case was a Lithuanian national employed in her home country by the Embassy of Poland. Her employment contract specifically provided that she had to comply with the laws of Lithuania. She brought a complaint of sexual harassment in the workplace, which was upheld initially by the country's Equal Opportunities Ombudsman. That ruling was appealed.


When the ECHR eventually heard the case, it concluded that the doctrine of immunity – where one State should not be subject to the jurisdiction of another – did not apply in the case due to the nature of the duties (as a secretary) performed by the applicant. The Adjudication Officer noted that the claimant was not a diplomatic agent as defined in the 1961 Vienna Convention on Diplomatic Relations, nor was she a consular officer, member of the diplomatic staff, or "any other person enjoying diplomatic immunity.”


It was also clear to the Adjudication Officer that the subject matter of any proceedings brought by the claimant would not interfere with the security interest of the respondent. The Adjudication Officer also noted that the claimant's contract states that “any dispute which may arise between the parties as to the implementation, or interpretation of the contract shall be subject to the generally acknowledged principles of international law.”


The Adjudication Officer concluded that there was not an agreement in place between the parties conferring exclusive jurisdiction on the employer State.

It is submitted thatin most cases where it could be shown that an employee’s role touched upon the sovereign function of the state in question, the diplomatic agent/ mission would be able to rely on diplomatic immunity or sovereign immunity in order to avoid employment claims brought against it. However and more recently, the scope of protection afforded by diplomatic/ sovereign immunity has been eroded by judgments from Europe which have been reflected in Irish domestic tribunals and courts.

In this regard and on the facts of the within case, it is submitted that -

1.       The Complainant was not a diplomatic agent as defined in the 1961 Vienna Convention on Diplomatic Relations, nor was she a consular officer, member of the diplomatic staff, or any other person enjoying diplomatic immunity.


2.       The within proceedings as initiated by the Complainant would not interfere with the security interest of the Respondent.


3.       The contract of employment between the Complainant and the Respondent was not given or furnished to the Complainant until the submissions of the Respondent dated the 29th day of June 2018 were sent to Solicitors acting for the Complainant. In this regard when her employment began in 2013, she was not aware of the details of the contract she was entering into with the Respondent. In any event, the said contact as furnished to her recently, does not expressly preclude the claimant from initiating the within claim. The contract does not state expressly or implicitly that the claimant is precluded from vindicating her rights under national law.

4.       The functions and duties of the Complainant while she worked for the Respondent was not sensitive or confidential. In fact aspects of the Complainants functions were published on line and other print media.

5.       The claimant was not involved in the exercise of state power. She had no decision making or policy making roles while she worked for the Respondent.

6.       There is no clause in the Respondent’s contract of employment conferring exclusive jurisdiction on the Respondent State.

7.       The Complainant’s employment did not involve performance of governmental authority

Further to the forgoing, it is submitted that the Workplace Relations Commission has jurisdiction to hear the within Complaint.                                                                                                        

For the furtherance of clarity Sovereign Immunity, not diplomatic immunity 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.

Decision on Preliminary Point:

Therefore, I find that the Complainant has a right to bring proceedings before the Adjudication Officer as she is not restricted by either the UN Convention on Human Rights or by Regulation 44/2001.

Jurisdiction/ sovereign immunity