Complainant

Respondent

Anonymised Parties

A Driver

A Diplomatic Mission

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00025508-001

03/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00026084-001

06/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00026085-001

06/02/2019

The complainant commenced employment with the respondent on July 1st, 2016 and his employment terminated on August 9th 2018. He had been employed as a driver.

His complaints relate to being unfairly dismissed (CA-00025508-001), the failure to pay him for additional hours worked (CA-00026084-001), and finally that he did not receive any holiday entitlements (CA-00026085-001).

By way of background there had been a long running dispute about the complainant’s wages.

He had been initially appointed in July 2016 on the basis of being paid €700 per fortnight (and eventually increased to €880.00) with an expectation that he would work eighty hours over the course of the two weeks.

Having completed his probationary period at the end of 2016 he sought confirmation of his appointment and an increase in his wages.

He did not get a reply to either request until February 4th when he was told that a decision on his permanent appointment was being deferred. He was told his wages would rise with effect from January 1st so that they met the requirements of the National Minimum Wage for one hundred and twenty hours work.

This did not happen and in September 2017 the complainant submitted a claim in respect of the hours he had worked based on the minimum wage of €9.25 and which came to a total of €2470.00.

He did not receive a reply and continued working until he received a notice of the termination of his employment from the respondent on August 8th, 2018 with effect from the following day.

This was the sum total of the exchange between the parties; there was no prior notice and no fair procedure of any sort. The dismissal was unfair.

The claim for outstanding unpaid hours now stands at €3220.00.

Regarding his annual leave he did not receive paid time off at any time since he commenced his employment with the respondent.

Regarding the issue of possible immunity, the complainant’s duties did not bring him within the ambit of the protections granted by immunity. He relied on Government of Canada v. The Employment Appeals Tribunal and Brian Burke [1992] 2 I.R. 485 where it was held that the doctrine of absolute sovereign immunity no longer applied.

The complainant also relied on the decision of the CJEU in Ahmed Mahamdia v People’s Democratic Republic of Algeria (Grand Chamber) C-154/11 where the Court applied the test of whether the functions of the claimant in that case (also an embassy driver) involved the exercise of ‘pubic power’. In that case it found that he did not, and that they constituted an activity that was ‘ancillary’ to the State’s exercise of her sovereignty.

The respondent did not attend the hearing.

I am satisfied that notice of the hearing was sent to the respondent’s registered address and no explanation was received for its failure to attend the hearing.

Despite the fact that the respondent did not attend the hearing or raise an immunity defence I am obliged to consider as a preliminary matter whether the respondent is protected by state/sovereign immunity.

Where state/sovereign immunity is successfully asserted in respect of a complaint the WRC will not have jurisdiction to hear it.

The principle of foreign state immunity is recognised in Article 29.3 of the Irish Constitution and while, as the complainant submitted in this case the principle of absolute state immunity has been eroded. However, any deviation must be carefully considered.

There has been a changing trend in the case law.

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

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

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

‘whether the relevant acts upon which the claim is based should, in that context, be considered within an area of activity, trading or commercial, or otherwise of a private law character…or whether it should be considered as having been done outside that area, and within the sphere of government or sovereign activity’.

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

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

Per O’Flaherty J.

This was followed in Buthelezi v. Coy Dlamini and Thobeka Dlamini and The Republic of South Africa DEC-E2016-105 where three tests (similar to those set out by McCarthy J. above) were identified.

Is the category public or private?

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

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

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

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

Convention No 44/2001:

The regulations in this convention are relevant. This Regulation of the European Union was enacted to regulate certain differences between national rules governing jurisdiction and recognition of judgements across Member States.

Regulation 18 (2) provides as follows:

“Where an employee enters into an individual contract of employment with an employer who is not domiciled in a Member State but has a branch, agency or other establishment in one of the Member States, the employer shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that Member State”.

Regulation 21 provides as follows:

“The provisions of this section may be departed from only by an agreement on jurisdiction: 1. which is entered into after the dispute has arisen, or 2. which allows the employee to bring proceedings in courts other than those indicated in this Section”.

Turning to more recent cases, the complainant referred to Asha Abdulahi Adan v Embassy of the Republic of Kenya (UD 2163/2011) . 

The complainant in that case was employed as a cleaner. In May 2011, she informed her employer that she was pregnant. Her employer subsequently asked her to lift a heavy item and she said she could not do so due to her pregnancy. On May 30th, 2011 the employer informed her employment would end the following day.

She was told that she would have to re-apply for her job and attend for interview, but she failed to be appointed.

The Tribunal noted that under the Unfair Dismissals Acts, 1997 to 2007, the burden of proof rested 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.

The Tribunal reviewed the case law on sovereign immunity and referring to the Supreme Court decision in Government of Canada v Employment Appeals Tribunal (op cit) accepted that the doctrine of absolute sovereign immunity no longer existed.

The European Court of Justice recently concluded that absolute sovereign immunity no longer applied across the EU.

In Ahmed Mahamdia v People’s Republic of Algeria (Case C-154/11) it rejected the argument of the Algerian Embassy in Germany that it enjoyed immunity from jurisdiction in that country after a driver (again) contested his dismissal before the German courts. The Court noted that the functions of the claimant did not involve the exercise of public powers.

“In the exercise of its functions, an embassy, like any other public entity, can acquire rights and obligations of a civil nature, in particular as a result of concluding private law contracts.”

The Tribunal in Adan v Kenya (citation above) said it was satisfied that the claimant’s functions as a cleaner did not bring her within the restricted form of state immunity as considered in the Canadian embassy case, nor was she involved in the exercise of public powers and she was awarded €44,200 under the Unfair Dismissals Acts.

In A Chauffeur v An Embassy ADJ-00004364 the complainant’s employment was terminated when he refused to carry out an instruction that was not given to him in line with the required procedure. He received a letter of termination dated May 30, which ended his employment the following day.

The Adjudicator considered the applicable law as it related to diplomatic immunity. In particular she too considered the decision of the Court of Justice of the EU in Ahmed Mahamdia (above)

In that case the Court said the functions of an embassy, as stated in Article 3 of the Vienna Convention on Diplomatic Relations, consist essentially in representing and protecting the interests of the sending State and promoting relations with the receiving State. 


In the exercise of these obligations, the embassy like any other public entity can “acquire rights and obligations of a civil nature, in particular as a result of concluding private law contracts.”


In its view, as regards contracts of employment concluded on behalf of the state, the embassy is an ‘establishment’ within the meaning of the law. 


Paragraph 1 of Article 11 of the Convention makes it clear that 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, in whole or in part, in the territory of that other State.”


However, the Court made clear that the paragraph does not apply where the employee in question has been recruited to perform certain functions in the exercise of government authority. These include diplomatic agents, consular officers and any others enjoying diplomatic immunity.


On this basis, the Adjudicator concluded that the complainant was entitled to bring proceedings before her as he was not restricted by either the UN convention on Human Rights or by Regulation 44/2001 of the EU governing diplomatic immunity.


The reason was that his duties did not fall within the exemptions listed above by the CJEU and therefore his complaint was within jurisdiction and his dismissal unfair.

In a recent case, Kanj v Kuwait UDD (1940/2019 Labour Court), the Court held that the State of Kuwait could not rely on the doctrine of limited sovereign immunity to prevent an unfair dismissal claim against the State being heard at the WRC.


The complainant said her work at the embassy as an academic advisor was predominantly administrative paperwork, and that no more than 5% of her work was making contact with individual students.
She did not require security clearance for the Office principal database which did not contain sensitive or personal data.

She argued her work at the 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.”


This emphasises the trend of a more restrictive interpretation as to when and to whom diplomatic immunity will apply.

The Labour Court noted that the contemporary practice of states “is consistent with a restrictive, as opposed to an absolute, theory of state immunity.”


Thus, the trend of more recent decisions is to look at the context of each ‘sovereign immunity’ claim more closely, such as in the EAT decision in Calderon & Ors v Embassy of the United Arab Emirates (2013).


The Labour Court in this case also considered the CJEU judgment in Mahamdia v Peoples’ Democratic Republic of Algeria (C-154/11) and the European Court of Human Rights cases Cudak v Lithuania and El Leil v France. 


In Ms Kanj’s case, the Court found her role as academic advisor at the Kuwaiti 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 [State of Kuwait] to rely on the doctrine of sovereign immunity.”


In the current case the complainant submitted that the functions he performed did not come within the sphere of ‘public functions’ and his role as a driver did not involve him in the core activities of the embassy.

Therefore, I find that I have jurisdiction to adjudicate on the complaint.

As to the substantive matter, it is relatively easy to decide.

The complainant was the subject of a peremptory dismissal that lacked even a nod in the direction of fair procedure. It was, as he submitted to the hearing substantively and procedurally unfair.

He was given no notice of the dismissal nor the opportunity to answer any charges that may have existed or to put his case. None of the components of a fair dismissal were present and there can be no hesitation in finding that it was unfair.

Accordingly, his complaint (CA-00025508-001) under the Unfair Dismissals Act 1977 succeeds.

His further complaint (CA-00026084-001) under the Payment of Wages Act related to the failure to pay him for additional hours worked arise in respect of the period between January 30th 2017 and January 1st 2018.

This complaint was received by the WRC on February 6th 2019 and therefore is well outside the time limits specified for the submission of a complaint under the Act

I accept the complainant’s case that he did not receive any paid holidays or payment on cessation (CA-00026085-001). He is entitled to payment for that proportion of twenty days annual leave for 2018 up to the date of his termination on August 9th (approximately eleven). No detail was given on the number of public holidays actually worked and I estimate these at four.

The complainant has been unable to get work and says that he was unemployed for nine months, although he has spent three months in a job training programme.

The Unfair Dismissals Act imposes an obligation on a complainant to apply themselves diligently to the search for alternative employment. This duty to mitigate loss has been re-stated by the Labour Court in numerous cases and is a requirement in the legislation at Section 7 (2) (c) where it states that regard must be had to

‘the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid’

The gravity of the unfair dismissal is at the upper end of the spectrum. Nonetheless, I found the complainant’s description of his efforts unconvincing and falling well short of the standard of effort required and this is reflected in my award.

On the basis of annual earnings of approximately €22,880, taking account of that failure to mitigate the award has been reduced to the net figure appearing below in the decision.

I uphold complaint CA-00025508-001 and award the complainant €10,000.00

I do not uphold complaint CA-00026084-001 and it is dismissed.

I uphold complaint CA-00026085-001 and award him €1,320.00.

Unfair Dismissal, duty to mitigate.