EDA1925

This is an appeal on behalf of the Kingdom of Saudi Arabia (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00011995, dated 9 October 2018) under the Employment Equality Act 1998 (’the Act’). The Respondent’s Notice of Appeal was received by the Court on 14 November 2018. The Court heard the appeal in Dublin on 8 May 2019. No witness was called by the Respondent. Ms Bushra Ibrahim (‘the Complainant’) gave detailed evidence in relation to her period of employment in the Respondent’s Cultural Bureau in Dublin between June 2013 and June 2017.

The within appeal is concerned only with a preliminary issue that goes to the Court’s jurisdiction. The Respondent unsuccessfully attempted to invoke the doctrine of sovereign immunity before the Adjudication Officer. The latter found against the Respondent on this matter but did not deal with the Complainant’s substantive claim under the Act.

Grounds on which Respondent seeks to invoke Sovereign Immunity

Mr Shanley BL for the Respondent set out following grounds in support of his client’s case that this Court should decline jurisdiction in the within appeal and find that the doctrine of limited sovereign immunity applies:

(a) The Complainant’s employment truly touched on the actual business or policy of the Respondent’s government;

(b) The Complainant’s employment 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 Respondent’s government’s public business organisation and interests;

(c) The Complainant’s employment was of a nature that created an element of trust and confidentiality to the extent that she was participating in the public acts of the Respondent’s government;

(d) The Complainant had been employed to perform particular functions in the exercise of governmental authority such that the Respondent is entitled to rely on Article 11.2(a) of the United Nations Convention on Jurisdictional Immunities and their Property 2004;

(e) The Complainant’s employment for one year had come to an end and was not renewed thus entitling the Respondent to rely on Article 11.2(c) of the United Nations Convention on Jurisdictional Immunities and their Property 2004;

(f) The Complainant’s contract of employment provided that any dispute arising out of the contract shall be submitted in Riyadh in the Kingdom of Saudi Arabia and consequently Article 11.2(f) of the United Nations Convention on Jurisdictional Immunities and their Property 2004 is engaged;

(g) The Complainant’s employment involved performing functions in the exercise of government authority.

The Evidence of the Complainant

The Complainant is fluent in English and Arabic. She told the Court that she commenced employment with the Respondent as an Academic Advisor on 17 June 2013. In or around February 2017 her role changed to that of Academic Co-Ordinator. She remained in the latter role for some eight or nine weeks only. During the period between early May and 17 June 2017, she attended at her place of work only to sign in in the morning and to sign out at 4.00 p.m. in the afternoon. Her employment terminated on 17 June 2017. The Respondent submits that immediately prior to the termination of her employment, the Complainant had been employed pursuant to a one-year fixed-term contract the expiry date of which was 17 June 2017 and that her dismissal consisted only of the non-renewal of that fixed-term contract. The Respondent also submits that the contract contains a mutually agreed clause in relation to jurisdiction. The Complainant’s evidence is she was presented with a written contract of employment in June 2016 which she signed but which was immediately taken from her. She was not given sufficient time to read it in detail before signing it but recalls that it did not contain a job description. She was not given a copy of the contract until after her dismissal and had sought professional advice that culminated in the commencement of the within proceedings. A copy of the first fixed-term contract (in Arabic) signed by the Parties in 2013 was exhibited to the Court along with an uncertified English translation.

The Complainant’s evidence is that she had no decision-making function or nor was she invested with any authority in either of the roles she occupied while in the Respondent’s employment. She described her role as being that of a facilitator, not a decision-maker. She also denies that the nature of her position gave rise to any special element of trust and integrity between her and the Respondent. She also says that she was not involved in any policy or decision-making functions at any time. Her work as an Academic Advisor, in her description, was exclusively administrative in nature and largely consisted of dealing with routine student requests submitted through an on-line portal. She gave the following examples of the tasks she was required to undertake: adding a student’s academic report to an electronic database; updating a student’s details on the system; imputing a student’s qualifications; answering a student’s queries about study-related issues; generating pre-formatted letters to be checked and signed by her superiors; preparing requests for a student’s ongoing funding and compiling academic results etc from the previous year in support of such requests. The Complainant denies that she ever had access to the Respondent’s scholarship scheme itself; she used an on-line related portal to process students’ requests for funding from the scheme only.

The Complainant told the Court that she was moved to the position of Academic Co-Ordinator around mid-February 2017. She hadn’t applied for this position and her request, at the time, to be transferred to the finance department had been refused. In the role of Academic Co-Ordinator, the Complainant acted on the instructions of the Head of the Academic Co-Ordination Department. For example, she conducted research and prepared summary reports in relation to matters connected with various projects being undertaken by the Head. She also arranged meetings as requested by the Head and attended some meetings but always as a note-taker only.

The Law

Approach of the Irish Courts and Tribunals

The law in relation to the doctrine of sovereign immunity as it applies in this jurisdiction is aptly summarised at paragraph 7-108 of David Fennelly’s International Law in the Irish Legal System (Round Hall, 2014) as follows:

• “As Ireland has not ratified either the Council of Europe or UN Convention, or enacted domestic legislation on state immunity, the rules on state immunity must continue to be derived from the rules of customary international law. In identifying the relevant rules, the Irish authorities – and, in particular, the Irish courts – must therefore have regard to the general practice of states. In approaching this task, the UN Convention, its preparatory materials, and the legislation of other states, will serve as valuable resources. The courts will also undoubtedly be influenced by the approach of other national and international courts, including the approach of the European Court of Human Rights and the Court of Justice of the European Union. However, because the rules of customary international law by their nature present uncertainties and because these rules, at this time and in this field, are in flux, the absence of Irish legislation makes it difficult to provide clear guidance on the scope and limits of state immunity in Irish law.”

The notice party inGovernment of Canada v Employment Appeals Tribunal, Mr Burke, had been dismissed from his employment as a driver at the Canadian Embassy in Dublin and referred a complaint of unfair dismissal to the Employment Appeals Tribunal. The Tribunal refused to accept that its jurisdiction in the matter was usurped by the Government of Canada’s right to sovereign immunity from suit and proceeded to determine the unfair dismissal complaint before it, in the respondent’s absence. The Government of Canada sought judicial review of the Tribunal’s decision. It was unsuccessful in the High Court but succeeded on appeal to the Supreme Court. The Court, echoing the judgment of O’Byrne J inSaorstat and Continental Steamship Company v de las Morenas[1945] IR 291, affirmed that 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.”

McCarthy J, in his judgment, adopted “the observations of Lord Wilberforce inCongressio del Partido[1983] A.C. 244 at p.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.’ …. A contract of employment or contract of service is not, in that context, a commercial transaction nor is contract cleaning or contract care hire unless such be for the commercial purposes of the foreign mission.”

The Employment Appeals Tribunal, in all cases since 1992 in which the issue of sovereign immunity fell to be considered by it, consistently applied the reasoning of the Supreme Court inGovernment of Canada v Employment Appeals Tribunal[1992] 2 IR 484. InMichael Greene v Embassy of India Dublin(UD352/2011), for example, the Tribunal determined the appellant’s complaint of unfair dismissal as follows:

• “The Tribunal did not have jurisdiction to hear the claim under the Unfair Dismissals Acts, 1977 to 2007, on the grounds that the claimant was employed by a foreign sovereign state, which has not waived its immunity. The Tribunal rely on the decision of the Supreme Court in the case ofGovernment of Canada-v-the Employment Appeals Tribunal and Brian Burke(1992) (sic) 2 I.R. 484 SC.”

• “While the Tribunal is fully aware that in normal circumstances the claimant might be entitled to relief under Irish legislation were he not working for an embassy, as embassies have sovereign immunity, the Tribunal has no alternative but to refuse jurisdiction.” (Michael Greene v Embassy of India, Dublin RP735/2012; MN644/2012; WT286/2012).

Likewise, inCalderon & Ors v Embassy of the United Arab Emirates(UD1219/2013, 1220/2013, 1221/2013) the Tribunal cited with approval the judgment in the Government of Canada case, noted that the respondent in Calderon had failed to invoke sovereign immunity and found as follows:

• “The Tribunal is satisfied that all three appellants’ functions as a Nanny/Domestic Help in the respondents (sic) 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 [Ahmed Mahamdia v Peoples’ Democratic Republic of Algeria Case C-154/11].

• “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.”

The applicant InAhmed Mahamdia v Peoples’ Democratic Republic of AlgeriaCase C-154/11, Mr Mahamdia, had both Algerian and German nationality. He had been employed as driver at the Algerian Embassy in Berlin from September 2002 to September 2007. He brought claims against the People’s Democratic Republic of Algeria before the Berlin Labour Court in respect of alleged underpayment of overtime and unlawful dismissal. The consideration of these claims gave rise to a protracted series of proceedings within the German Labour Court system followed by a reference to the Court of Justice for a preliminary ruling. The issue referred related to the interpretation of Articles 18(2) and 21 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and of enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).

In considering the specific questions referred to it, the CJEU (Grand Chamber) also made a number of observations on the functions of an embassy and on the application of the international law principle of sovereign immunity. At paragraph 49 of its judgment the court notes as follows:

• “In the dispute in the main proceedings, it should be recalled that the functions of an embassy, as stated in Article 3 of the Vienna Convention on Diplomatic Relations, consist essentially in representing the sending State, protecting the interests of the sending State, and promoting relations with the receiving State. In the exercise of those functions, the embassy, like any other public entity, can act iure gestionis and acquire rights and obligations of a civil nature, in particular as a result of concluding private law contracts. That is the case where it concludes contracts of employment with persons who do not perform functions which fall within the exercise of public powers.”

• “Consequently, in view of the content of that principle of customary international law concerning the immunity of States from jurisdiction, it must be considered that it does not preclude the application of Regulation No 44/2001 in a dispute, such as that in the main proceedings, in which an employee seeks compensation and contests the termination of a contract of employment concluded by him with a State, where the court seised finds that the functions carried out by that employee do not fall within the exercise of public powers or where the proceedings are not likely to interfere with the security interests of the State. On the basis of that finding, the court seised of a dispute such as that in the main proceedings may also consider that that dispute falls within the material scope of Regulation No 44/2001.”

InCudak v Lithuania(2010) 51 EHRR 15 the ECtHR considered the scope of the margin of appreciation afforded to states in the application of sovereign immunity in the context of Article 6 rights. The applicant in this case had been dismissed from her employment as a switchboard operator at the Polish Embassy in Vilnius after she had made a complaint of sexual harassment against a male colleague. Her complaint was that the Lithuanian courts - in declining jurisdiction to consider her sexual harassment claim on the basis that state immunity applied – having regard to the particular circumstances of the applicant’s case had impaired her right of access to a court under Article 6(1) ECHR and in doing so had acted “disproportionately” and had overstepped their margin of appreciation.

Also inCudak’scase, the ECtHR referred to the adoption of the UN Convention on the Jurisdictional Immunities of States. While noting that Lithuania had not ratified that Convention, the Court noted that “it is a well-established principle of international law that, even if a State has not ratified a treaty, it may be bound by one of its provisions in so far as that provision reflects customary international law.” In this context, the Court referred specifically to Article 11 of the 2004 UN Convention (and Article 11 of the International Law Commission’s Draft Articles on which the latter was based) and affirmed that those provisions apply “to the respondent State under customary international law.”

Article 11 provides as follows:

• “Contracts of employment
  1. 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.
  2. Paragraph 1 does not apply if:
  (a) the employee has been recruited to perform particular functions in
  the exercise of governmental authority;
  (b) the employee is:
  (i) a diplomatic agent, as defined in the Vienna Convention on
  Diplomatic Relations of 1961;
  (ii) a consular officer, as defined in the Vienna Convention on
  Consular Relations of 1963;
  (iii) a member of the diplomatic staff of a permanent mission to an
  international organization or of a special mission, or is recruited to
  represent a State at an international conference; or
  (iv) any other person enjoying diplomatic immunity;
  (c) the subject-matter of the proceeding is the recruitment, renewal of
  employment or reinstatement of an individual;
  (d) the subject-matter of the proceeding is the dismissal or
  termination of employment of an individual and, as determined by the head of
  State, the head of Government or the Minister for Foreign Affairs of the
  employer State, such a proceeding would interfere with the security interests of
  that State;
  (e) the employee is a national of the employer State at the time when
  the proceeding is instituted, unless this person has the permanent residence in
  the State of the forum; or
  (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 judgment continues at paragraph 70 as follows:

• “The Court observes in particular that the applicant was a switchboard operator at the Polish embassy whose main duties were: recording international telephone conversations, typing, sending and receiving faxes, photocopying documents, providing information and assisting with the organisation of certain events. Neither the Lithuanian Supreme Court nor the respondent Government have shown how these duties could objectively have been related to the sovereign interests of the Polish government.”

• “Article 11 of the International Law Commission’s 1991 Draft Articles, as now enshrined in the 2004 Convention, applies under customary international law, even if the State in question has not ratified that convention, provided it has not opposed it either (seeCudak, … �� 66-67). For its part, France has not ratified it but has not opposed it: on the contrary, it signed the convention on 17 January 2007 and the ratification procedure is currently pending before the French Parliament …

  Consequently, it is possible to affirm that the provisions of the 2004 Convention apply to the respondent State, under customary international law (seeCudak… � 67), and the Court must take this into consideration in examining whether the right of access to a court, within the meaning of Article 6 � 1, was respected.

  As was the case inCudakwith Lithuanian law, this finding is confirmed by French domestic law. In its case-law, the Court of Cassation refuses to apply jurisdictional immunity in an absolute manner, taking the view that it is not applicable in the context of a dispute concerning an embassy employee who has no particular responsibility in the exercise of the public diplomatic service …

  Furthermore, the Court takes the view that the applicant, who was neither a diplomatic or consular agent of Kuwait, nor a national of that State, did not fall within any of the exceptions enumerated in Article 11 of the 2004 Convention. The Court observes that this Article enshrines the rule that a State has no jurisdictional immunity in respect of employment contracts, except in the situations exhaustively enumerated therein.”

Discussion and Decision

Having considered the Parties’ submissions and the Complainant’s untraversed evidence, the Court finds as follows:

(a) There is no evidence before the Court on which it can find that the Complainant’s employment touched upon the business of the Respondent’s sovereign government. It appears to the Court that the Complainant’s work, at all materials times, was merely of a routine administrative nature and cannot be said to have impacted in any meaningful way or at all on either the formulation or implementation of sovereign policy;

(b) It follows from the Court’s finding at (a) that the nature of the work performed by the Complainant cannot be said to have involved her in the Respondent’s government’s public business organisation and interests;

(c) The Complainant’s employment was not of such a nature that it gave rise to a degree of trust and confidentiality over and above the ordinary level of trust and confidentiality that applies in any employment relationship;

(d) Article 11.2(a) of the United Nations Convention on Jurisdictional Immunities and their Property 2004 is not engaged on the facts of this appeal as there was no evidence before the Court to support the Respondent’s submission that the Complainant was recruited “to perform particular functions in the exercise of governmental authority”; the Complainant’s detailed evidence was that as a fluent speaker of both English and Arabic she had the necessary skills to input data in relation to students’ academic progress into the Respondent’s database and to populate pro-forma letters with information from the database, as necessary; furthermore, the Complainant’s written contract of employment does not include any job description other than a mere job title;

(e) The substantive subject matter of the Complainant’s complaint under the Act is one of alleged discrimination on the grounds of religion; the Respondent’s attempt to rely on Article 11.2(c) of the United Nations Convention on Jurisdictional Immunities and their Property 2004 is mere semantics, in the circumstances;

(f) The Court accepts that each of the Complainant’s fixed-term contracts contains a clause purporting to invest the courts in Riyadh with exclusive jurisdiction in relation to any dispute arising out of the contract, however, the Complainant’s uncontradicted and – in the Court’s view, credible- evidence was that she was merely presented with her contract of employment in Arabic for the purpose only of signing it and was never afforded an opportunity to read it in detail or to take advice on it before signing it; it follows, therefore, that she cannot be said to having given any meaningful consent to the exclusive jurisdiction clause therein; that being the case, the Court finds that the Respondent is not entitled to rely on Article 11.2(f) of the United Nations Convention on Jurisdictional Immunities and their Property 2004;

(g) Having regard to the findings of the Court set out above, the Court also finds that the Complainant’s employment did not involve her in performing functions in the exercise of government authority.

Having regard to the foregoing, the Court finds that the Respondent’s attempt to invoke the doctrine of limited sovereign immunity is not well-founded. The Complainant’s substantive complaint under the Act is, therefore, remitted to the Workplace Relations Commission for adjudication.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
MK______________________
15 July 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.