ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00032176
Parties:
| Complainant | Respondent |
Parties | Fozia Rafiq | State of Kuwait |
| Complainant | Respondent |
Representatives | Crushell & Co Solicitors | Ms Kiwana Ennis, B.L, instructed by Fitzsimons Redmond Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00042728-002 | 26/02/2021 |
Date of Adjudication Hearing: 27/05/2022
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. I explained the changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021. The parties proceeded in the knowledge that hearings are to be conducted in public, decisions issuing from the WRC will disclose the parties’ identities and sworn evidence may be required.
I gave the parties an opportunity to be heard, to present evidence relevant to the complaints and to cross examine witnesses.
The respondent was represented by Ms Kiwana Ennis, B.L., instructed by Fitzsimons Redmond Solicitors
The complainant was represented by Crushell & Co Solicitors.
The complainant gave evidence under affirmation.
Background:
The complainant submits that the respondent contravened the provisions of the Protection of Employees (Fixed-Term Work) Act, 2003, by terminating her employment in a manner less favorable that that afforded to a permanent full-time employee. She commenced employment as an accountant on a fixed term contract with the respondent on 4/2/2020. She was dismissed on the 3/2/2021. Her gross monthly salary was €3530. She submitted her complaint to the WRC on 26 February 2021. . |
Preliminary issues
Summary of Respondent’s Case:
Preliminary issue 1. Incorrectly Impleaded respondent. The respondent submits that the correct name of the respondent is The State of Kuwait. The respondent is a sovereign nation with a diplomatic mission in Ireland known as the Embassy of Kuwait and Kuwait Cultural Office, a deputation of the Embassy of the State of Kuwait, located in London. Preliminary point 2. Sovereign immunity. The respondent is invoking sovereign immunity in relation to the complainant’s claims and maintains that the WRC does not have jurisdiction to hear these complaints. The Respondent refers to the constitutional recognition of sovereign immunity found in Article 29. 3 of the Bunreacht na hEireann. It states “Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States”. The respondent points to the Vienna Convention on Consular Relations 1963 which generated the Diplomatic Relations Immunity Act 1967 in this jurisdiction and in respect to immunity, provides as per Article 43(1) that “Consular offices and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities or the receiving State in respect to acts performed in the exercise of consular functions” The respondent submitted that the complainant was a consular officer. The doctrine of sovereign immunity 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”. That decision overturned the EAT’s decision to exercise jurisdiction and hear an Irish Chauffeur’s complaint of unfair dismissal against the Canadian Embassy. This authority has been followed by the Irish courts in Greene v Government of United States of America, UD289/2014, and Buthelezi v DlaminiDEC-E2016.-105. The exception is a few cases where the foreign state chose not to turn up to give evidence and failed, thus, to invoke the doctrine of sovereign immunity. The respondent refers to the lead judgement of O’Flaherty J in Canada who, conscious of the more restrictive view of sovereign immunity which limits it to acts within the sphere of governmental or sovereign activity, held that immunity should be accorded to activities that “truly touch the actual business or policy of the foreign government “ He held that the work of the chauffeur ,employed on a contract of service with the embassy, fell within the public domain of the government in question as he was directly connected to the work of the Ambassador. While that presumption can be rebutted, Flaherty J held that the trust and confidence reposed in the embassy’s chauffeur “had the effect of involving him in the employing government’s public business and organisation.”. He held that the doctrine of restrictive State immunity applied. The respondent states that the instant complaint must be decided within the confines of Irish law. The complainant’s contract of employment was with the Government of the State of Kuwait, represented by the Head of Mission. Her contract stated that she was subject to the regulations for locally engaged staff employed at diplomatic missions of the state of Kuwait and to such decisions and circulars as implementing those regulations. Her entire employment functions were governed by the circulars emanating from the relevant departments in Kuwait. She was responsible for verifying Kuwait students’ entitlements to particular educational grants, to authorise and to issue payments. She signed and satisfied herself that the correct payments were issuing. She worked under the direction of the Ministry of Education in Kuwait and the supervision of the local Head of Mission. Her contract was therefore public as opposed to private in nature. She was part of a team involved in the implementation of Kuwaiti policy and was therefore bound by the decision in Canada. She is also bound byArticle 11 of the United Nations Convention on Jurisdictional Immunities of States and their Property 2004 (“2004Convention”). Art. 11.1 constitutes an exception to the doctrine of sovereign immunity. However, Art. 11.2 provides a number of exceptions to that exception and in particular it provides that para. 1 of Art. 11 shall not apply if “(a) The employee has been recruited to perform particular functions in the exercise of governmental authority” The respondent maintains that the complainant was recruited to “perform particular functions in the exercise of governmental authority” The respondent disputes the applicability Kanj v Kuwait UDD1940 which was not upheld in the High Court. There can be no deviation from Canada, a decision of the Supreme Court. It has never been overturned.
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Preliminary issue
Summary of Complainant’s Case:
The complainant’s solicitor requests the adjudicator to accept that she does have jurisdiction to hear the complaint. He states that absolute sovereign immunity no longer applies, and its reach and that of the decision of Canada has been significantly tempered by the emergence of the 2004 Convention, decisions of the Court of Justice of the European Union, (Ahmed Mahamdia v People’s Democratic Republic of Algeria, Case C 154/11), and Irish authorities as evidenced by Kanj v Kuwait UDD1940.
The complainant maintains that sovereign immunity should not apply in respect of this employee’s right to have her complaint heard by the WRC. They rely on Article 11 of the 2004 Convention which precludes a state from invoking immunity from jurisdiction in proceedings initiated in a court of another state and which relate to a contract of employment. The nature of the complainant’s duties does not bring her within the exemptions to Article 11, laid out in section 11.2. She had no authority to exercise any management function or autonomy. She is not involved in public business. Her work as an accountant in the Cultural Office in Dublin did not embrace the exercise of any public powers or governmental authority. She merely disbursed monies to parties. The complainant is a relatively lowly paid employee, carrying out administrative tasks. She was not involved in any public business,
Evidence of complainant given under affirmation.
The complainant though not in possession of any accountancy qualifications worked as an accountant. Her authority was limited to issuing payments decided upon and approved by head office. On a daily basis she depended on the Academic Advisor to approve the dispatch of payments to students and suppliers. Without his authority she was not permitted to make payments. She made no decisions as to where, how, why, when and how much money was spent or was to be disbursed. She received a formal warning on 20/10/20 from the Cultural Counsellor/Director of the Cultural office for issuing a sum of money without the authorisation signature of both the Academic Advisor and the Head of the Office, an act identified by the respondent as being in breach of a ministerial decree regarding locally engaged staff of Kuwaiti embassies and diplomatic missions abroad.
Authorities relied upon.
The complainant relies on Kanj v Kuwait UDD1940 where the Labour Court held that they had jurisdiction to hear a complaint from a more senior employee with greater autonomy than that enjoyed by the complainant in the instant case. The Court held that that the role of that employee who had discretion regarding foreign students in Ireland, did not fall within the exemption set out in Article 11.2 of the 2004 Convention. While this decision was appealed to the High Court and not upheld it was remitted back to the Labour Court on the basis of technical reasons and it’s finding was not overturned by the High Court. The case of Asha Abdulahi Adan v Embassy of the Republic of Kenya UD 2163/2011 which in reference to Canada, accepted that the doctrine of absolute sovereign immunity no longer exists and held that the claimant, a cleaner, was not prevented from having her claim heard. In Ahmad Mahhamdia v People’s Republic of Algeria (case C-154/11) ,the court found that the functions of the claimant ( a driver), working in the Embassy in Germany, did not involve the exercise of public powers.
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Preliminary issues:
Findings and Conclusions:
Preliminary point number 1. Incorrect respondent. The matter of correcting the respondent’s name was addressed in Auto Direct Ltd v Vasile Mateui, DWT1922. While the circumstances of the instant case differ somewhat from those pertaining in the appeal before the Labour Court, what they have in common are the following elements which were set out in DWT 1922: “The Court is further fully satisfied that the respondent party that appeared before the Court was the Complainant’s employer. That party was fully aware of the Complainant’s complaints to the WRC. He knew precisely from whom the complaints were and to what the complaints referred. The respondent party has had a full opportunity to be heard and to answer those complaints. The Court is therefore equally satisfied that the employer will suffer no prejudice or injustice by its decision on this preliminary matter……. In arriving at this conclusion, the Court is also conscious of the High Court Judgment in O’Higgins -v- University College Dublin & Another (2013) 21 MCA wherein Mr Justice Hogan held :“Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be)”… “In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts.” The Labour Court continued “Accordingly, the Court considers the erroneous inclusion of ‘Auto Depot Tyres Ltd’ on the WRC complaint form to be no more than a technical error. The Court is fully satisfied that the Respondent’s name can simply be amended on the paperwork to reflect its correct legal title, that of ‘Auto Depot Ltd’. On the basis of the above authority, I agree to correct the name of the respondent to reflect its correct legal title. This is reflected in the decision. Preliminary point number 2. Lack of jurisdiction due to the doctrine of sovereign immunity.
Relevant Law on sovereign immunity. The United Nations Convention on Jurisdictional Immunities of States and their Property 2004 provides as follows: Art 11.” 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, in whole or in part, in the territory of that other State” Article 11.2 carves out a number of exceptions and states that Article 11.1 shall 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 organisation or of a special mission, or is recruited to represent a State at an international conference ;(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: (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”
Irish Authorities. The respondent argues that I am bound by the doctrine of sovereign immunity as manifested in a host of authorities but primarily by the Supreme Court decision of Government of Canada v Employment Appeals Tribunal and Burke (1992] 2 IR 484, which overturned an EAT decision granting jurisdiction to Mr. Burke and overturned a subsequent, unsuccessful appeal by the respondent to the High Court. The Supreme Court upheld Canada’s contention that a chauffeur escorting the Ambassador enabled them to plead diplomatic immunity and relieved them of the obligation to defend the charge of an unfair dismissal. This authority has been followed by the Irish courts in Greene v Government of United States OF America 9UD289/2014) AND Buthelezi v Dlamini 92017 2lr 24. The Supreme Court in Canada focussed on the essential element which must prevail where a party pleads diplomatic immunity. That essential element is whether the complainant in his/ her role and work is exercising governmental authority. Flaherty J in Canada in considering the work of a chauffeur determined that “However, if the activity called in question truly touches the actual business or policy of the foreign government then immunity should still be accorded to such activity”. He stated “I think once one approached the embassy gates one must do so on an amber light. Prima facie anything to do with an embassy is within the public domain of the government in question”. He stated most importantly that this presumption can be rebutted. He referred to the trust and confidence which exists between the chauffeur and the ambassador that has” the effect of involving him in the employing government’s public business organisation and interests.” The complainant points to the State of Kuwait v Kanj UDD1940,in which the Labour Court having regard to the provisions of customary international law and specifically the provisions of Art. 11.2(a) of the 2004 2Conventuon, held that an Academic Advisor on higher salary and exercising more authority than the complainant in the instant case, was entitled to maintain her claim of unfair dismissal before the Court and the appellant was not entitled to invoke sovereign immunity. The respondent’s appeal to the High Court against that determination was upheld and it was remitted back to the Labour Court, not because the Labour Court were not entitled to have come to the determination which they did, namely that the respondent could not plead diplomatic immunity, but because of how they concluded that the complainant did not exercise governmental authority. Barr J held that “The Labour Court was entitled to come to a conclusion that it preferred one set of evidence to the other; but it was obliged to set out its reasons why it was rejecting some, or all, of the evidence led on behalf of the appellant, or why it may have accepted that evidence, yet still come to the conclusion that the claimant’s role did not involve the exercise of governmental authority. In reaching either of those conclusions, it had to set out clearly the reasons why it had reached whichever conclusion it chose”. The Labour court failed to identify why they preferred the evidence of the complainant which conflicted with that of the respondent as to whether the complainant’s role involved the exercise of governmental authority which is the crux of the matter in determining if a plea of sovereign immunity can succeed. Barr J., furthermore, in allowing the appeal and remitting it back to the Labour Court held that the Labour Court incorrectly imported an additional test which a respondent must meet to succeed in a plea of sovereign immunity. That test required the respondent to meet a test not found in Article 11.2(a) of the 2004 Convention. This determination of the Labour Court resulted in the respondent having to disprove that the complainant’s role did not “Involve the exercise of any public powers, or governmental authority and did not touch on the business of the State of Kuwait” whereas Art. 11.2(a) specifies that it is only necessary for the employee to disprove that her function did not encompass the following: “to be recruited to perform particular functions in the exercise of governmental authority.” Application of the Law to the facts. Canada was decided in 1992 and cannot be considered in a vacuum from subsequent developments. Even applying Canada without reference to any subsequent developments, it was decided on the then thinking that a chauffeur’s work with his close connection and proximity to the Ambassador and the Ambassador’s reliance upon him brought him within the sphere of activity “that truly touches the actual business or policy of the foreign government”. This classification was sufficient to uphold a plea of restricted sovereign immunity. But that reliance and connection is not present between this complainant and the Ambassador or his consular officials. She reports to a Head of Mission. Flaherty J. in the lead judgement held that whether immunity should apply was a rebuttable presumption dependent on the role and function of the relevant employee. Canada has been overtaken by the 2004 Convention which insists that the question for determination in cases where sovereign immunity is raised is whether the complaint’s work comes within the exemptions laid out in article 11.2. The respondent notes that Ireland has not ratified the 2004 Convention. The ECHR considered the non- ratification of the 2004 Convention by a member state in Cudak v Lithuania, Application No 15869/02. It upheld a complaint by a Lithuanian national employed as switchboard operator in the Lithuanian embassy in Poland that her right of access to a court, a right guaranteed by Article 6 of the European Convention on Human Rights had been violated. The ECHR 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.” The Court held that Article 11 applies “to the respondent State under customary international law.” The ECHR made a similar finding in the case of El Leil v France (Application no. 34869/05). Ireland while it has not ratified the 2004 Convention did not oppose it and it applies to complaints such as the instant case. Decisions of the CJEU. In Ahmed Mahamdia v People’s Democratic Republic of Algeria, Case C 154/11, par. 3.1, the CJEU differentiated between the functions of an embassy in exercising its diplomatic role as set out in the Vienna Convention on Diplomatic Relations, a role which will attract immunity, and the functions of an employee employed on a private contract whose “Functions do not fall within the exercise of public powers” Accordingly, the court found that the functions of the claimant (a driver), working in the Embassy in Germany, did not involve the exercise of public powers. The complainant in the instant case issued payments, eligibility for which and for what amount was decided on elsewhere. In fact, she was issued with a formal warning for failing to acquire a signature of authorisation on one payment which she made. Unlike in Kanj, the complainant’s evidence on the content of her duties was not contested whatever about the significance of her duties. On the basis of the evidence, I find that the complainant’s duties do not bring her role within any of the exemptions enumerated in Article 11.2 of the 2004 Convention. She is not a consular officer as suggested by the respondent. Her role does not correspond to the definition of a consular officer set out in the Vienna Convention on Consular Relations, 1963. The complainant holds Irish nationality. A hearing into her complaint of a breach of the Act of 2003 does not endanger the security of the State of Kuwait. The complainant’s evidence does not reveal that she was exercising any degree of governmental authority, or policy, on behalf of the state of Kuwait. The evidence indicates that she did not participate in acts of governmental authority with Ireland. On the basis of her evidence and the law, I find that I do have jurisdiction to hear her complaint.
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Substantive Decision.
Summary of Complainant’s Case:
The complainant contends that the respondent has breached section 6 of the Protection of Employees (Fixed- Term Work) Act 2003 in affording her less favourable treatment than that that afforded to a comparable permanent employee. In the normal course of events her contract of employment provided for renewal. The decision not to renew her contract did not arise because of the mere expiration of the contract. She was prejudiced when compared to a full-time permanent employee who, unlike the complainant a fixed term employee, would have enjoyed fair procedures in the event of the application of any disciplinary process. Evidence of complainant The complainant states that fixed term contracts are automatically renewed for all other fixed term employees. The respondent issued her with three written warnings shortly before she was informed that her contract would be terminated. Two of these warnings concerned matters for which she was not responsible. The third warning issued in respect of her failure to hand over accounts to be dispatched to the relevant government departments in Kuwait. She was not invited to any investigation into whatever errors she may have committed before she was issued with the warnings, nor was she offered any appeal against these sanctions. She was called to a disciplinary hearing on 2/12/20. She was told two hours later that her fixed term contract would not be renewed. She was not offered the right of appeal against the decision to terminate her contract. She was the only fixed term employee whose contract was not renewed. A full-time permanent employee would have been treated differently and given access to fair procedures. She stated that he was not in a position to confirm the contractual status of other employees. She should be able to use a hypothetical comparator. Cross examination on substantive complaint. The complainant confirmed that the two months’ notice given to her on the 2/12/20 was in accordance with the terms of her signed contract. The complainant stated that she was comparing her experience o that of the other fixed term employees whose contracts were renewed. |
Summary of Respondent’s Case:
Without prejudice to the respondent’s preliminary argument, the respondent denies that any breach of the Act of 2003 has occurred.
The complainant signed a fixed term contract for one year with an option in clause 6 of the signed contract for either party to terminate the contract within two months of the cesser of the contract. The respondent did this. The respondent gave notice to the complainant on 2/12/2020 that they would not be renewing the fixed term contract and that it would expire on 2/3/2021.
The case presented to the hearing is more suited to a complaint under the Unfair Dismissals Act, 1977. The complainant had failed to name a comparator and has not made out her complaint under the Act of 2003. A hypothetical comparator is not permitted in a complaint under this Act. The decision not to renew was in accordance with her contract.
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Findings and Conclusions:
The complainant asks me to accept that the respondent has breached its obligations under section 6 of the Act of 2003 in relation to her conditions of employment. Relevant Law. Conditions of employment for fixed-term employees. “6.—(1) Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee. (2) If treating a fixed-term employee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated. (3) n/a” The alleged breach of the Act is the failure of the respondent to afford no less favourable conditions of employment in a disciplinary process than those afforded to comparable permanent employees. The complainant maintains that fair procedures would have been applied were a comparable permanent employee to have made any mistakes. The definition of a comparator is found in section 5 which provides as follows: “ 5.—(1) For the purposes of this Part, an employee is a comparable permanent employee in relation to a fixed-term employee if— “(a) the permanent employee and the relevant fixed-term employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (2) is satisfied in respect of those employees, (b) in case paragraph (a) does not apply (including a case where the relevant fixed-term employee is the sole employee of the employer), the permanent employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant fixed-term employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable permanent employee in relation to the relevant fixed-term employee, or (c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant fixed-term employee and one of the conditions referred to in subsection (2) is satisfied in respect of those employees. The complainant also asserts that she has been treated differently to other fixed term employees who have transitioned from fixed term contracts to permanent contracts.” The complainant was unable to identify a comparator. She contends that she should be able to use a hypothetical comparator. The wording of section 6 states that the fixed term employee and the comparator “are employed” and does not allow for a hypothetical comparator. While I accept that the respondent failed to apply fair procedures and failed to afford the complainant the incontrovertible right of representation and appeal against the disciplinary sanctions, this is a complaint under the Protection of Employees (Fixed Term Work) Act 2003 which obliges the complainant to identify a comparable permanent employee who is afforded the fair procedures denied to her. As the complainant is unable to meet that preliminary condition, I can only find that the complaint is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I do not find this complaint to be well founded. |
Dated: 24-May-2023
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Key Words:
Absence of a comparator. |