UDD1940

This is an appeal by Ms Nada Kanj (‘the Complainant’) from a decision of an Adjudication Officer (bearing reference number ADJ-00009123 and dated 9 May 2018) under the Unfair Dismissals Act 1977 (‘the Act’). The State of Kuwait (‘the Respondent’) successfully invoked the doctrine of sovereign immunity at first instance. On that basis, the Adjudication Officer held that he had no jurisdiction to hear the substantive claim. The Complainant appealed from that decision as to jurisdiction by Notice of Appeal received by the Court on 13 June 2018. The Court heard the appeal in Dublin on 28 November 2018 and on 12 and 13 February 2019.

The Court was furnished with comprehensive written submissions by both sides. It heard evidence from the three witnesses for the Respondent: Mr Mostafa Farghaly, Mr Abdullah al Naimi and Ms Yolla el Massri. It also heard evidence from the Complainant herself and from a former colleague of hers and a former employee of the Respondent, Mr Ian Dunne.

Complainant’s Employment with the Respondent

The Complainant is a citizen of both the Lebanon and Ireland. She is fluent in both Arabic and English. She was employed at all material times at the Kuwaiti Cultural Office in Dublin as an Academic Advisor. It appears that the Respondent maintains a number of similar offices throughout the world for the purpose of establishing and maintaining links between educational and research institutions in Kuwait and in the countries in which those cultural offices are located. The Complainant’s employment with the Respondent commenced on 3 September 2007 and ended on 14 February 2017.

The State of Kuwait currently funds approximately five hundred students attending third level institutions in Ireland at a cost of in excess of €50m per annum. The majority of those students are engaged in the study of medicine or pharmacy. The balance study engineering, business, accountancy or nutrition in the main. The Kuwaiti Cultural Office sponsors each of the students and assists them, inter alia, in the following ways: it assists students to acquire the necessary Garda National Immigration Bureau (‘GNIB’) approvals and to open a bank account; it receives and discharges invoices for student’s college fees; it pays out a regular base salary to each student as well as spousal allowances where applicable; and it pays allowances to students to cover the purchase of books, computers and air fares.

The Parties’ Submissions

The Complainant submits that her role comprised exclusively of administrative, technical and secretarial functions at all times and that, therefore, it did not involve the exercise of any public powers or governmental authority and did not touch on the business of the State of Kuwait such as to entitle the Respondent to rely on the doctrine of sovereign immunity in the within proceedings.

Ms Ennis BL for the Respondent submits that the Court should comprehend the role of Academic Advisor performed by the Complainant in the context of the Kuwaiti Government’s overall approach to third level education. That approach she says demonstrably involves considerable investment and is resource-intensive with the Academic Advisors playing a key role in the implementation of government policy. For that reason, the position of Academic Advisor is a senior position in the Cultural Office and ranks immediately below the role of Head of Office and Cultural Attaché. Ms Ennis BL also submits that the Academic Advisor’s role involves more than the routine performance of mere administrative tasks; It requires the exercise of a high degree of judgment, integrity and trust along with the application of particular skills such as the ability to properly notarise records of students’ academic achievements, she says. For those reasons, the role does touch on the policy and exercise of governmental authority such that the State of Kuwait, in her submission, is entitled to invoke the doctrine of sovereign immunity in the within proceedings.

Mr Mostafa Farghaly

Mr Farghaly told the Court that he has been an Academic Advisor in the Respondent’s Cultural Office in Dublin since August 2013. In his evidence he stated that as part of his/her duties, an Academic Advisor is a member of the Academic Committee which is formally invested with powers by the Kuwaiti Ministry of Higher Education to make certain decisions in relation to Kuwaiti students in Ireland e.g. to freeze or extend a student’s scholarship. In respect of other matters – e.g. qualifying criteria for scholarships – the Committee merely makes recommendations to the Ministry which can then accept that recommendation or not.

Mr Lowey BL, for the Complainant, put it to the witness that neither of the Complainant’s employment contracts made any reference to her being a member of an Academic Committee. Mr Lowey BL also drew the witness’s attention to an advertisement dated July 2018 for the position of Academic Advisor in the Kuwaiti Cultural Office in the UK and noted that the duties as listed in the advertisement made no reference to the successful candidate’s membership of an Academic Committee.

Mr Lowey also put it to the witness that no Academic Committee meeting took place in the period 2014 to 2016 when Dr Messi had been Head of Office. The witness’s evidence was that the Committee had only met occasionally during that period to discuss certain specific issues. When asked in the course of his cross-examination where he believed the power to make decisions lay within the Cultural Office – with the Head of Office or the Academic Committee - the witness confirmed that all written communications from the Cultural Office to the Ministry are signed by the Head of Office. Likewise, communications from the Ministry to the Cultural Office are addressed to the Head of Office.

Finally, when asked to give a breakdown of an Academic Advisor’s workload, Mr Farghaly told the Court that it typically consists of the following:

• 
  •50%: paperwork in the office;

  •40%: preparation for and attendance at the Academic Committee; and

  •10%: liaison with students.

Mr Abdullah al Naimi

Mr al Naimi told the Court that he has been an Academic Advisor at the Respondent’s Cultural Office in Dublin since May 2010. He described the role of Academic Advisor in some detail, suggesting that there are five principal aspects to it: participation in the work of the Academic Committee; organising the payment of student fees to academic institutions and the payment of allowances to the students; maintaining data in relation to students’ academic progression on the principal database (‘the DEIRA’); the production of documentation required by students, such as letters confirming the fact that they are being sponsored by the State of Kuwait; and direct engagement with academic institutions (e.g. through participation in discussions about access to particular courses and attendance at graduation ceremonies).

In his evidence in relation to the Academic Committee, Mr al Naimi referred the Court to Decree No 52 promulgated by the Kuwaiti Deputy Minister of Higher Education on 12 April 2012 which, according to the witness, delegated the power to local Academic Committees to make decisions/grant approval in relation to a number of matters affecting students (change of major subject; change of institution; sufficient progression to merit payment of scholarship; approval for workplace training; approval for participation in online courses, etc). According to the witness, the decision of the Academic Committee with regard to the any of the foregoing matters in the case of any student has ‘legal, political and financial implications’.

Mr Naimi told the Court that it is his understanding that the key responsibility for ensuring ensuring that all payments made to and on behalf of students by the Cultural Office are in order and correct rests with the Academic Advisor. Finally, in his direct evidence, the witness told the Court that the State of Kuwait is constantly looking for new ways to collaborate with Irish educational and research institutions that can deliver educational programmes that meet Kuwait’s requirements.

Under cross-examination from Mr Lowey BL, the witness restated his view that participation in the work of the Academic Committee is a key part of the Academic Advisor’s role. He opined that this aspect of the work accounted for 40% of the time spent by an Academic Advisor. He stated that Academic Committee meetings typically lasted approximately 3 hours or a half-day. In reply to a question from the Court, the witness suggested that approximately 15-20% of an Academic Advisor’s work could be classified as administrative in nature. The balance of the work, he said, required a high degree of sophistication and professionalism on the part of the individual performing the role. According to the witness, an Academic Advisor is required to take the lead on many matters, and to bring forward suggestions and demonstrate initiative. The post holder is required to have the ability to interact with a range of Ministries while navigating complex rules, regulations and procedures. They are also required to be familiar with the rules applied by Irish universities, the Garda National Immigration Bureau and the visa arrangements operated by the Irish State.

Ms Yolla el Massri

This witness has been employed as an Accountant at the Respondent’s Cultural Office in Dublin since December 2015. She gave evidence in relation to the process whereby an Academic Advisor raises an invoice in respect of the fees payable on behalf of a particular student. This element of the process is the responsibility of the Academic Advisor, she told the Court, because the Advisor is familiar with the student and is aware of the student’s academic progression. As the Accountant, the witness was responsible, she said, for checking the payment details and bank details of the payee and releasing the funds. She stated in evidence that 905 of payments made by the Cultural Office required the signature of an Academic Advisor, an Accountant and the Head of Office. The witness confirmed to the Court that her role could only be performed in her absence by another Accountant. Likewise, she could not substitute for an Academic Advisor. Under cross-examination, Ms el Massri told the Court that the Accountant was responsible at all times for transferring funds; the Academic Advisor’s role was confined to requesting the payment of student fees and allowances.

The Complainant’s Evidence

The Complainant described the breakdown of her daily work in the office as follows: c.95% of her time was taken up with paperwork and inputting data; c. 4-5% was spent making contact with individual students by email or by telephone; and about 1% of her time was taken up with attendance at graduation and conferring ceremonies. She identified the following examples of duties she regularly undertook:

• 
  •Assisting Kuwaiti students studying in Irish universities;

  •Setting up students’ sponsorship records;

  •Presenting academic information to potential students;

  •Managing the practical affairs of a cohort of the approximately 300 hundred Kuwaiti students sponsored by the Kuwaiti Ministry of Higher Education to study in Ireland each year;

  •Liaising between Irish academic institutions and the parents of Kuwaiti students in relation to such matters as student placements, student progression and appeals processes;

  •Creating student files and maintaining a student database;

  •Organising tickets, books and allowances for Kuwaiti students;

  •Confirming whether the students had complied with sponsorship rules before requesting the disbursement of sponsorship funds;

  •Documenting all students’ activities;

  •Monitoring students’ studies and their attendance at various institutions;

  •Issuing students with reminders of their obligations under Kuwaiti student rules, regulations and policies;

  •Preparing student progress reports; and

  •Attending weekly meetings with other Academic Advisors and the Head of the Cultural Office in Dublin to discuss student-related issues.

In her direct evidence, the Complainant said that her first involvement with the so-called Academic Committee was in September 2016 following the appointment of Dr Alothman as Head of the Cultural Office in Dublin. She says that there had been no similar meetings during the period that Dr Alothman’s predecessor – Dr Messi – held office. Her recollection is that she attended about fifteen such meetings in total in the course of which certain issues that had arisen in relation to students assigned to her or to her colleagues were discussed. On average, she believes, the meetings of the Academic Committee lasted between thirty and forty-five minutes and took place at weekly or fortnightly intervals. The Complainant informed the Court that she never handled funds nor did she have the power to authorise disbursement of funds. She exercised merely an administrative function in that process whereby she carried out checks on a student’s details and eligibility before sending a memorandum to the Accountant and to the Head of Office along with the particular student’s request for payment. Likewise, the Complainant denies that she ever had any role in negotiating with any third level institution in relation to fee levels or the allocation of places.

The Complainant gave evidence in relation to a meeting she attended at University College Cork in February 2008. Her recollection of events is that Dr Alothman had requested her to prepare a memorandum in advance of a meeting he had proposed with the authorities there in order to secure an increase in the number of places in the medical school available to Kuwaiti students. She also made the advance arrangements for the meeting by telephone. Although the university personnel had expected Dr Altothman himself, along with the Cultural Attaché, to attend, Dr Alothman – she says – at the last minute, directed her to attend in his place. This was most unusual, in her experience, and outside the normal brief of an Academic Advisor. Her recollection is that the meeting In UCC was awkward and tense as she had not been expected there.

The Complainant told the Court that neither she nor any other Academic Advisor provided consular assistance as part of their role. Any such matters were referred directly to the Kuwaiti Embassy in London.

Mr Ian Dunne

Mr Dunne stated that he had been engaged as an independent contractor by the Respondent to manage the Information Technology services in the Cultural Office in Dublin between July 2008 and April 2011. His evidence was that he had first-hand knowledge of the role performed by an Academic Advisor in the Cultural Office because he had effectively performed a large part of the role for a number of months in 2009 during the period between Mr al Naimi’s predecessor’s departure and Mr al Naimi’s arrival. He also retained his responsibilities with regard to the Respondent’s IT systems throughout that period. Mr Dunne also expressly told the Court that he substituted for the Complainant ‘on more than one occasion’. At no stage did Mr Dunne engage directly with students.

Neither the Academic Committee nor the DEIRA system was in place at the time Mr Dunne acted in the Academic Advisor role. Mr Dunne’s evidence is that he prepared memoranda for the Head of Office and the Accountant, requesting the disbursement of funds to individual students, based on those students’ results as provided to him by the relevant educational institutions. The witness told the Court that he hadn’t signed those memoranda; they were signed by an Academic Supervisor. Mr Dunne also informed the Court that he played a role in processing payments to students once they had been approved by the Head of Office and the Accountant. Payment was initiated through ‘batch processing’ which required him firstly to upload a file containing the names and bank details of payees to the Cultural Office’s bank’s website. The Head of Office then authorised the payments, he said, by entering a code into a device that had been supplied by the bank. This device, according to the witness, was kept by the Head of Office at all times in a safe in his office.

Mr Dunne also gave evidence that he had also notarised students’ degree results in the company of an Academic Supervisor. The Head of Office had provided him with the official seal for this purpose. Finally, Mr Dunne told the Court that in his opinion and based on his experience of fulfilling many of the duties associated with the role of Academic Advisor, the role was comprised essentially of secretarial and administrative tasks.

Legal Submissions

Both Ms Ennis BL and Mr Lowey BL furnished the Court with commendably comprehensive and up to date legal submissions setting out the development of the law of sovereign immunity at the national and international level.

Ms Ennis BL’s submissions relies heavily on the judgment of O’Flaherty J inCanada v Employment Appeals Tribunal[1992] 2 IR 484. In particular, Counsel directed the Court to page 500 of the judgment where the learned judge, having suggested that the doctrine of absolute sovereign immunity was probably never established in this jurisdiction, went on to state that if the work performed by an embassy or similar employee in the course of his/her employment “truly touches the actual business or policy of the foreign government then immunity should still be accorded to such activity”. Applying that test to the facts of the case before the Court, O’Flaherty J held that the degree of “trust and confidentiality” vested by his employer in Mr Burke (who had been employed as a chauffeur at the Canadian Embassy) was such that it “[created] a bond with his employers that [had] the effect of involving him in the employing government’s business organisation and interests” and, therefore, merited the application of restrictive state immunity to prevent Mr Burke from litigating his dismissal claim.

Ms Ennis BL also opened the United Nations Convention on Jurisdictional Immunities of States and their Property (2004) to the Court. Although this Convention has not been ratified by the Irish State, it is accepted that it forms part of customary international law. Counsel seeks to rely in particular on Paragraph 2(a) of Article 11 of the Convention which provides that the restriction placed by Paragraph 1 of that Article on States invoking immunity in cases relating to a contract of employment does not apply if “the employee has been recruited to perform particular functions in the exercise of governmental authority”. Counsel submits that Decrees Nos 52 and 121 from the Kuwaiti Ministry of Higher Education, opened to this Court, provide for the exercise of governmental powers ‘through the Academic Committee’. Counsel points in particular to power of the Academic Committee to approve students’ admissions into universities and to certify the equivalency of students’ degrees, functions she submits go to the heart of the official educational policy of the State of Kuwait.

Mr Lowey BL submits that the judgment of the Supreme Court inCanada v Employment Appeals Tribunalwas very much a decision of its time and would not be replicated today in the light of the developments in the law of sovereign immunity in the intervening period. He further submits that nothing in the factual matrix established by the evidence in this case supports a finding that the Complainant’s role touches on the business or policy of a foreign government or involves the Complainant in the public business of the government of the State of Kuwait. Having regard to the judgment of the court of Human Rights in bothCudak v Lithuania[2010] BHRC 157 andSabeh El Leil v France[2011] IRLR 781, counsel suggests that in order to succeed in its application to rely on the doctrine of limited sovereign immunity to defeat the Complainant’s right to pursue her claim under the Act, the Respondent is required to demonstrate that the Complainant exercised some element of public powers or governmental authority or otherwise touching on the business of the State of Kuwait in the performance of her contractual duties. He urges the Court to find that the Respondent has not come up to proof in this regard.

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.”

Having considered in some detail the evidence of the Complainant and of the witnesses proffered by the Respondent, the Court finds that the Complainant’s role as Academic Advisor in the Cultural Office did not involve the exercise of any public powers or governmental authority and did not touch on the business of the State of Kuwait such as to entitle the Respondent to rely on the doctrine of sovereign immunity in the within proceedings. It follows that the Court cannot accept Ms Ennis BL’s submission that Paragraph 2(a) of Article 11 of the United Nations Convention on Jurisdictional Immunities of States and their Property 2004 is determinative of the issue before this Court as it has not been established that the Complainant was “recruited to perform particular functions in the exercise of governmental authority”.

That being the case, the Court finds that the Respondent is not entitled to rely on the doctrine of limited sovereign immunity to preclude the determination of the Complainant’s substantive claim under the Act.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
CR______________________
22 July, 2019.Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.