Complainant

Respondent

Parties

Abdul Rafiq

State Of Kuwait

Representatives

Mr. Eoin O’Connor, B.L., instructed by  Bowman McCabe Solicitors

Ms. Kiwana Ennis, B.L., instructed by  Fitzsimons Redmond Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00048483-001

04/02/2022

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

CA-00048483-002

04/02/2022

 The complainant has submitted a complaint that he was unfairly dismissed on 10/9/2021, and a further complaint that the respondent made an unlawful deduction of €10,350  from his wages on 10/9/2021.

The complainant commenced employment as a driver with the respondent on 16/8/2008.

He earned €828 gross per week.

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.

The respondent is a sovereign nation.

The diplomatic mission in Dublin is recognised by the Irish State. It is the respondent’s position that the WRC does not have jurisdiction to hear this matter.

The State of Kuwait’s diplomatic mission in Ireland is overseen by the Head of Mission, currently Prof. Fahimah Al-Awadhi. The main function of the mission is to provide financial and administrative support to Kuwaiti students in Irish educational institutions in order to implement Kuwait’s governmental policy of encouraging the education of Kuwaiti citizens in Irish educational institutions. The payments made on behalf of and to the Kuwaiti citizens include university fees, maintenance allowances for the students and their families, insurance for the students and families and flights.

The complainant commenced employment with the respondent as a driver on 16th August 2008

 Clause 6 of his contract provided:

“Any dispute which may arise between the parties as to the implementations or

interpretations of the contract shall be subject to the generally acknowledged

principles of international law.”

Outline of the Law on Sovereign Immunity

The respondent refers to the constitutional recognition of sovereign immunity found in Article 29. 3 of 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 draws attention to Article 11 of the United Nations Convention on Jurisdictional Immunities of States and their Property 2004 (“2004 Convention”) which provides 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, 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 doctrine of sovereign immunity and its intersection with the exercise of governmental authority 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 (upheld by the High Court) 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 element of trust and confidentiality that is reposed in the driver of an embassy car creates a bond with his employers that

” has the effect of involving him in the employing government's public business organisation and interests”.

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.

Later Irish consideration of Article 11 of the 2004 Convention, and to the test to be applied

by the Labour Court in its invocation, was provided by Barr J. in The State of Kuwait

v Kanj 2021 IEHC 295 (“Kanj”). In this case, the WRC had refused jurisdiction of an

employment dispute on the grounds of sovereign immunity. The employee appealed to

the Labour Court, which made a finding that the employer was not entitled to rely on a

claim of sovereign immunity. The Labour Court decision was appealed on a point of

law to the High Court, wherein the test under Article 11 of the 2004 Convention in

relation to the applicability of sovereign immunity in labour disputes involving the

employees of diplomatic missions was addressed. Barr J. held that the Labour Court

erroneously applied a three-strand test in determining whether the employee’s

employment came within the remit of Art. 11.2(a) of the 2004 Convention, finding (at

para 63) that instead

“it is only necessary for the employee to be recruited to perform particular functions in the exercise of governmental authority.”

He remitted it back to the Labour court.

Application of Canada to the instant complaint.

The respondent submits that the complainant’s contract of employment was with the Government of the State of Kuwait, represented by the Head of Mission. His contract stated that he 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. His entire employment functions were governed by the circulars emanating from the relevant departments in Kuwait.  He worked under the supervision of the local Head of Mission. In his role, the Complainant was responsible for driving members of the mission and various government documents to various locations in the furtherance of government functions. His contract was therefore public as opposed to private in nature and was therefore bound by the decision in Canada.

The complainant is also bound by Art. 11.2 of the 2004 Convention which 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”

Decisions of the European Court of Human Rights

The respondent disputes the complaint’s contention about the applicability of the European case law to the circumstances of the instant case. Concerning the complainant’s reliance on decisions of the European Court of Human Rights, the respondent submits that the failure of the respondent in Sabeh El Leil v France (Application no. 34869/05), and in Cudak v Lithuania 2010) 51 EHRR 41 to prevail in their plea that sovereign immunity should apply was attributable to procedural missteps, coupled with their failure to engage with the evidence; this led the courts to accept that sovereign immunity did not apply.

The respondent argues that the principal point of reference in determining if sovereign immunity should apply has to be Canada. This decision of the Supreme Court has never been overturned.

The respondent contends that the WRC, therefore, has no jurisdiction to hear these complaints.

The complainant’s barrister requests the adjudicator to accept that she does have jurisdiction to hear the complaint.

The complainant’s barrister notes Fennelly’s observation in International Law in the Irish Legal System (Round Hall 2014), par 7.108, that in the absence of the state having ratified the Council of Europe (European Convention on State Immunity), or the 2004 Convention , or enacted domestic legislation on state immunity,

“the rules on state immunity must continue to derive from the rules of customary international law”.

Fennelly further noted

“The courts must therefore have regard to the general practice of states. Given that the law is in flux and the absence of Irish legislation makes it difficult to set out the limits of state immunity, the state will have regard to decisions of the European Court of Human Rights and the Court of Justice of the European Union “

The complainant’s barrister refers to Article 5 of the European Convention on State Immunity, 1972, which precludes a state claiming immunity if the dispute concerns a contract of employment entered into between the state and an employee employed locally.

He refers to Article 11(1) of the 2004 Convention which provides that

“unless agreed between the states concerned, a state cannot invoke immunity from jurisdiction before a court of another state which is otherwise competent in proceedings 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”.

 While acknowledging the Supreme Court decision of The Government of Canada v Employment Appeals Tribunal and Burke [1992] 2 IR 484, where the Court held that the embassy could plead sovereign immunity in a complaint of unfair dismissal, the complainant’s barrister maintains that a more restricted view of sovereign immunity now obtains. In support of this contention, he points to The European Court of Human Rights decision in Cudak v Lithuania, Application No 15869/02, which upheld a complaint by a Lithuanian national employed as a switchboard operator in the Lithuanian embassy in Poland.  Her main duties recording international telephone calls, typing, sending and receiving faxes, documents, providing information and assisting with the organisation of some events. The Grand Chamber, not being persuaded that these specific duties related to the sovereign interests of Poland, found that the embassy was not entitled to claim sovereign immunity.

The complainant refers to Sabeh El Leil v France (Application no. 34869/05), where, again, not being persuaded that his specific duties, those of an accountant, related to the sovereign interests of the State of Kuwait, the Grand Chamber found that the embassy was not entitled to claim sovereign immunity.

 In Ahmad Mahhamdia v People’s Republic of Algeria (case C-154/11), the CJEU 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 relies on Kanj v Kuwait UDD1940 where the Labour Court held that the state of Kuwait could not rely on the doctrine of limited sovereign immunity to prevent an unfair dismissal claim being heard against the state. It is on appeal to the High Court.

The complaint’s barrister also relies on A Driver v a Diplomatic Mission, ADJ -00020005 where the adjudicator found that a driver employed by that embassy did not perform ‘public functions’ and his role as a driver did not involve him in the core activities of the embassy. The adjudicator found that he did have jurisdiction to adjudicate on the complaint.

The complainant maintains that the plea of sovereign immunity should not prevent this employee’s right to have his complaints heard by the WRC.

The nature of the complainant’s duties does not bring him within the exemptions laid out in Article 11.2 of the 2004 Convention.

The complainant’s role as a driver did not involve the exercise of any functions that amount to the exercise of government authority.

Preliminary point number 1.

Incorrect respondent.

While the incorrect respondent was named on the complaint form, the submission on behalf of the complainant names the correct respondent. The respondent made no case to deny the complainant jurisdiction to have his complaint heard.

The matter of correcting the respondent’s name was addressed in Auto Direct Ltd v Vasile Mateui, DWT1922 which upheld that complainant’s request to amend the respondent’s name to reflect the correct legal title. In doing so, the Labour Court relied on the High Court Judgment in O’Higgins -v- University College Dublin & Another (2013) 21 MCA wherein Mr Justice Hogan held that

“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.”

On the basis of the above authority, I decide 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 my primary point of reference should be the Irish authorities and 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. 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 added, most importantly, that this presumption can be rebutted. 

Flaherty J found that the trust and confidence which exists between the chauffeur and the ambassador has

” the effect of involving him in the employing government’s public business organisation and interests”

and was sufficient to uphold Canada’s plea that sovereign immunity should prevail.

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 Convention, 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 rather because of how the Court concluded that the complainant did not exercise governmental authority. In the State of Kuwait v Kanj,  2021] IEHC 395 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. This expanded test required the respondent to meet a test not found in Article 11.2(a). This decision of the Labour Court resulted in the respondent having to prove 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 be recruited to perform particular functions in the exercise of governmental authority.”

A recent Labour Court determination again considered on what grounds a plea of sovereign immunity could prevail. In State of Kuwait v Ms Fozia Rafiq, FTD235, the complainant accepted – in reply to questions from Counsel for the respondent – that the payment requests she processed as an accountant were paid out to implement the respondent’s educational policy and that it followed that her role was intimately connected with the implementation of that policy.………That being the case, the Court found  that

 “the complainant’s role as an accountant in the respondent’s Cultural Office in Dublin was intimately connected to the fulfilment of the respondent’s third level education policy in accordance with the ‘Kuwait 2030’ programme and therefore, the invocation of the doctrine of sovereign immunity had been made out”.

It is not in dispute that absolute sovereign immunity no longer applies, or that its application is dependent on the nature of the work undertaken by the employee. Its reach and that of the decision of Canada has been significantly tempered by the emergence of the 2004 Convention, and decisions of the European Court of Human Rights and the Court of Justice of the European Union which addressed the nature of the work undertaken by the employee.

The respondent asks that the non -ratification of the 2004 Convention by Ireland be factored into my deliberations.

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 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 Sabah El Leil v France (Application no. 34869/05. In terms of whether that applicant’s work fell within the exemptions laid out in Article 11.2 of the 2004 Convention, the Grand Chamber not being persuaded that the duties of an accountant related to the sovereign interests of the State of Kuwait, found that the embassy was not entitled to claim sovereign immunity.

Ireland while it has not ratified the 2004 Convention, did not oppose it and it applies to complaints such as the instant case.

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.

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 characterisation was sufficient to uphold a plea of restricted sovereign immunity.

Flaherty J. held that whether immunity should apply was a rebuttable presumption dependent on the role and function of the relevant employee.

 But no evidence was presented to demonstrate an equivalent reliance and exclusive connection between this complainant and the Head of Mission to whom he reports. The complainant’s work as a driver for the Mission’s various requirements entailed driving the head of Mission on occasions, sometimes driving his family, sometimes delivering or acquiring goods, and delivering items to students. I consider that the role of a driver to a Mission is different to the connection existing, exclusively, between an ambassador and his/her personal chauffeur.

Does the complainant’s work come within the exemptions laid out in Article 11.2 of the 2004 Convention?

The respondent in the instant case made no connection between the work of the complainant and the fulfilment of any of the respondent’s policies, unlike in State of Kuwait v Ms Fozia Rafiq, FTD235 where that complaint’s work was intimately connected to the fulfilment of the respondent’s educational policy .I find it a stretch to characterise the complainant’s s work which consisted to some extent of attending to the personal needs of the Head of Mission and of the  Kuwaiti students as acts of governmental authority on behalf of the State of Kuwait.

On the basis of the evidence, I find that the complainant’s duties do not bring his role within any of the exemptions enumerated in Article 11.2 of the 2004 Convention.

He is not a consular officer. His role does not correspond to the definition of a consular officer set out in the Vienna Convention on Consular Relations, 1963.

The complainant holds dual Irish and Pakistani nationality.

A hearing into his complaint of a breach of the Act of 1977 does not endanger the security of the State of Kuwait.

The evidence fails to disclose the exercise by the complainant of any degree of governmental authority, or policy, on behalf of the state of Kuwait

On the basis of her evidence and the law, I find that I do have jurisdiction to hear his complaint.

CA-00048483-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977

The complainant contends that he was unfairly dismissed by way of an unfair selection for redundancy on 10/9/2021. It was his wife’s complaint against the respondent which drove the respondent to select him for redundancy.

Evidence of the complainant given under affirmation.

The complainant confirmed that he drove for the Head of Mission, drove his family members on occasions, did shopping and took laundry, drove for staff on occasions. During the first year of Covid -19, he frequently drove to support students’ requirements.

The first notification to him of redundancy occurred on 2/6/2021. He believes it resulted from a complaint of harassment lodged by his wife In February 2021 against the respondent.

He believes there is still a requirement for a driver.

He stated that the respondent HR officer told him in September 2021 that if the complaint of harassment by his wife against the respondent were to be withdrawn within 2 weeks, his redundancy would be shelved, and he would continue in his job.

Mitigation.

The complainant was on job seekers’ allowance from 4/11/2021. He secured an 11-month contract position on 31/1/2022. He started applying for positions in mid-October 2022 for the period following on the expiration of his twelve-month contract.

Cross examination of the complainant.

The complainant confirmed that he was contracted to work as a driver for the respondent

In terms of his time spent driving between March 2020 and September 2021, he stated that he made about 10 deliveries to students.

He confirmed that he stayed at home, as requested by the respondent, from August 2020 – September 2021 as there was hardly any work. He confirmed that he was paid full salary during this period.

The complainant accepts that he has not been replaced. He believes that the respondent requires a driver.

He accepts that other employees were performing work from home during Covid 19.

He contends that the tea lady has a wider range of tasks than serving tea and that job was one which he could have been offered, for example, she had stated answering phones in 2015. He confirms that he does not have sight of her contract of employment and is unsure of what exact work she may have been doing while she was working from home.

Concerning the complainant’s proposal that he could do some accountancy work, as he had prepared final financial statements for some graduate students and could have slotted into such a role as an alternative to redundancy, he confirmed that he did not possess an Association of Chartered and Certified Accountants recognised qualification in accountancy, but contends that he could still perform such a role.

He stated that the document setting out alleged Road Traffic Act and PRSI infringements on the part of a Mission employee was not done to halt his redundancy; it was unrelated. He did not write or submit these reports. It is the HR Officer’s report of what the complainant put to him on at the meeting of 7/9/2021. He did not state that he would report these infringements to social media but did state that he would report it to the Higher Education Department in Kuwait.

The complainant states that he suggested that he could do the job of an academic advisor. He has a degree in engineering from Pakistan.

He also states that the number of academic advisors could be reduced from four to two. He confirmed that he did not apply for the recent position of an accountant. He states that the respondent took on two new accountants in 2020.

Witness evidence given under affirmation.

The witness, the complainant’s wife stated that she worked as an accountant with the respondent from May 2020 until January 2021. The respondent took on another accountant in July 2020.

She stated that she had never discussed her own complaint with any other employee in the office.

 CA -00048483-002. Complaint under section 6 of the Payment of Wages Act, 1991.

The complainant contends that the respondent made an unlawful deduction, identified initially as €10,350, from the complainant’s wages on the 10/9/2021.

 There are three elements to this complaint. This sum of €10,350 is made up of two months’ notice pay, 8 days accrued untaken annual leave (adjusted downward from 10 days), but not paid upon termination of his employment, and a monthly food allowance of €234 withheld from his wages on 10/9/2021.

The complainant requests that I uphold his complaint.

CA-00048483-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977

Without prejudice to their preliminary objections, the respondent denies that the complainant was unfairly dismissed. He was fairly dismissed by reason of redundancy.

Evidence of HR Officer given under affirmation.

The HR officer also functions as an academic advisor to the Mission.

 The decision to make the complainant redundant was taken by the Embassy of Kuwait in London. The primary function of the Cultural Office of the Embassy of Kuwait which operates out of Dublin is to provide educational opportunities to Kuwaiti students at third and fourth level colleges in Ireland.

Kuwait invests about €80-100 million a year on approximately 800 students studying in Ireland.

The witness acts as an academic advisor, assisting student applicants to sort out their admission to colleges and their fees.

The Mission employs five academic advisors, one accountant and one receptionist.

In 2021 there were four academic advisors, one accountant, one IT executive (resigned in 2022) and one driver. The complainant was employed as a driver.

Covid -19 prompted remote working practices and led the respondent to engage in a restructuring programme in March 2021.

Between March and June 2021, the respondent discussed their staffing requirements with the Ministry for Education in Kuwait -a process delayed by the fact that staff in Kuwait were also working from home.

The witness advised the complainant on 2 June 2021 of the possibility that his post could be made redundant as it is a stand-alone post which is no longer required. He invited him to a meeting on 7 June to propose and consider alternatives to redundancy and any issues which the complainant might have. He invited the complainant to submit his CV and to identify his alternatives to redundancy. The complainant suggested reducing the number of academic advisors from four to three, but the primary reason for the existence of the Cultural office is academic advice to students. This was not a viable proposal.

The complainant suggested that the tea lady should be made redundant, but her role has changed and she does, in addition, some reception work and academic advice and she works from home for much of the time, ordering goods and services. She was appointed before him in 2006.

he had been paid on full salary during this period.

The witness disputes that the complainant worked in the office during March -August 2020 other than occasionally. 

The witness was waiting for him to produce evidence of his qualifications in respect of the roles which he stated he could fulfil -being a HR Officer, an accountant, a PR  Officer, an  academic advisor, but no evidence of these qualifications was forthcoming in the meetings of June or September 2021.Concerning the complainant’s qualification in  accountancy, he held a FETAC level 5 qualification and not a professional qualification in accountancy such as the Association of Chartered and Certified Accountants recognised qualification which is what they needed. Each of the alternatives to redundancy presented by the complainant were considered but were deemed unviable.

There was only one driver. There had been no work for the complainant in the year running up to the decision to make the job redundant. He had been maintained on full salary during this period.

He made allegations about practices in the Cultural Office, entirely unrelated to the need for a redundancy at the meeting of the 7/9/2021.They were addressed.

Cross examination of the witness.

The witness confirmed that he works under the umbrella of the UK Embassy in London.

The function of the Cultural Office in Dublin is primarily educational.

The respondent had no issues with the complainant’s employment or work.

The identification of his role for redundancy came out of a restructuring examination. The document was not shared with the complainant.

The arrival of Covid 19 in March eliminated the need for a driver as staff including the Head of Mission were working from home.

To the complainant’s point that his redundancy was a result of his wife’s complaint of harassment against the respondent and a referral of her complaint to the WRC, the witness stated that there was no link. His wife received notice of the expiration of her fixed term contract in December 2021 and lodged her complaint with the WRC in February 2021. The respondent Cultural Office was only made aware in May 2021 of his wife’s complaint as the complaint had been sent to the embassy in London. The restructuring document identifying the driver’s role to be at risk was drawn up In March 2021.

The essential point is that there was no work for a driver. The Head of the Cultural Office does his own driving now.

The tea lady was appointed in 2006. She expanded her role over the years into administrative duties.

Evidence of the Academic Advisor (2) given under affirmation.

She is an academic advisor. Her function was to liaise with universities and schools on behalf of the Kuwaiti students and applicants.

She had no role in the proposed restructuring of staffing at the Mission.

She was a minute taker at the meetings with the complainant to discuss his proposed redundancy.

At the meeting on the 7/9/2021, he was demanding that a position should be found for him. He didn’t produce evidence of his qualifications as requested.

Contrary to what the complainant asserts, the HR officer made no reference to his wife’s complaint at the September meeting. It was the complainant, in fact, who stated at the September meeting that if his proposed redundancy was withdrawn, his wife would withdraw her complaint against the respondent.

Cross examination of witness.

She accepted that the complainant’s frustration at the proposed redundancy was understandable at the June meeting.

The witness knew of his wife’s complaint in June 2021, but it is a separate complaint. The witness accepts that it would have been preferable to have included the complainant’s comments about his wife’s complaint being the reason for his redundancy in the minutes of the September meeting and his suggestion that his wife could withdraw her complaint but is confident of her recollection of the meetings.

The complainant’s wife’s complaint went to the Embassy in London, and they did not receive it in Dublin until 17 May 2021.

CA-00048483-002. Complaint under section 6 of the Payment of Wages Act, 1991

The respondent concede that they owe the complainant two months’ notice pay

The holiday pay element of his complaint is disputed. He was entitled to a pro rata amount of leave. He only worked until September 2021. He was paid his correct leave entitlement of 20 days for the period January – September 2021.

The academic advisor (2) advised that the annual leave entitlement is 30 days per annum. During the period of Covid -19, staff were unable to take leave and carried over leave from 2020 into 2021.The complainant took 26 days in 2020.

The meal allowance of €234 was not paid for month of August 2021. No employee received it as they were working from home.

The respondent’s barrister confirmed that he did not receive advance notice that the food allowance would not be paid.

Concerning the complaint of an unlawful deduction in the withholding of a pay rise in 2021 which the complainant failed to quantify, employees in the London Embassy got an increase, but the increase was not applied to any employees employed prior to 2019 in Dublin.

CA-00048483-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977

I am obliged to identify if the dismissal was based on a genuine redundancy or an unfair dismissal masquerading as a redundancy.

Legislation involved and the obligations on the parties.

Section 6 of the Unfair Dismissals Act 1977 puts the burden of proof on the Respondent.

6.(1) “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 6(4) follows on with the substantial grounds and states

6(4) “Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following”:

(a) n/a.

(b) n/a

(c) the redundancy of the employee”.

The onus is placed on the respondent to justify the dismissal and where the respondent seeks to rely on the redundancy defence, the respondent must prove

that the dismissal resulted wholly or mainly from that redundancy situation and

that the employee made redundant was fairly selected.

The definition of redundancy in is set out in the Redundancy Payments Act 1967 -2016.

Section 7(2) of the Redundancy Payments Act 1967provides that

“ an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or             

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish,”            

Was it a genuine redundancy?

The role which the complainant occupied, and which was targeted for redundancy was a stand-alone position. It is not disputed he only undertook very occasional driving duties between March 2020 and September 2021.The complainant maintains that there is a need for a driver, but I accept that the arrival of Covid -19 changed work practices and staff commenced driving their own cars alone.  The evidence is that this has not changed, and that taxis or the use of staff’s own cars are the preferred form of transport. These facts are not changed by the submission of a complaint by his wife against the respondent which the evidence suggests came after the construction of the March 2021 restructuring document, identifying the driver’s role to be at risk of redundancy

 I accept that the respondent’s requirements had changed from the date at which the complainant commenced employment.

I find that the circumstances obtaining in the Mission in September 2021 align with the justification for a redundancy found in section 7(2) of the Act of 1967 as amended. The evidence demonstrates that the need for a driver no longer existed and that there was no suitable alternative roles into which the complainant could be placed.

I find that the respondent engaged in a consultation process with the complainant.

I do not find this complaint to be well founded.

CA-00048483-002 Complaint under section 6 of the Payment of Wages Act, 1991

I am required to establish if the respondent unlawfully deducted a sum, identified initially as €10,350, from the complainant’s wages on the 10/9/2021.This sum is made up of two months’ notice pay, a monthly food allowance of €234 and 8 days accrued annual leave (adjusted downward from 10 days), but not paid upon termination of his employment.

The respondent has conceded that the complainant is entitled to be paid two months’ notice.

Based on the respondents’ own declaration of a weekly wage of €828.62, contained in their redundancy calculator, I find that this amounts to the sum of €7181 which is to be paid to the complainant if not already done so.

Relevant Law.

 Section 5 (1) of the 1991 Act states

“An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.’

As a first step in establishing the existence or not of an unlawful deduction, the complainant must demonstrate that the monthly food allowance of €234 is ‘properly payable ‘to him.

Section 5 (6) of the Payment of Wages Act, 1991 identifies a deduction as follows:

“Where the total amount of wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act) , or

(b)  none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then except in so far as the deficiency or non- payment is attributable to an error of computation, the amount of the deficiency or non- payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.” 

I find that the monthly food allowance had been paid to him throughout his employment. It was withheld from the complainant without any reference to a contractual entitlement to do so, was devoid of any formal advance notification in writing and the respondent did not seek the complainant’s consent to the withholding of this allowance as required by the Act of 1991.

No evidence was advanced other that it was an allowance paid while employees were at work in the Mission.

I find this to be an unlawful deduction

I find this element of the complainant ‘s complaint to be well founded.

I require the respondent to pay the sum of €234 to the complainant subject to all lawful deductions.

The third component of this complaint under the Act of 1991 is the complainant’s claim that he is owed eight days carried over from his leave entitlement of 30 for the calendar year 2020. The respondent’s witness stated that he had taken 26 days of his leave entitlement of 30 days in 2020, and that he was permitted to carry over untaken leave which would leave him with four owing. The complainant stated he had taken 22 days. The respondent produced no records or pay slips to show when and for how many days annual leave he was paid during the years 2020 or 2021.

Accordingly, I find that the respondent owes the complainant eight days unpaid leave carried over from 2020.

I find this element of the complainant ‘s complaint to be well founded.

I require the respondent to pay the complainant the sum of €1325.79 which equals eight days annual leave.

I require the respondent to pay the sums of €7181, plus €234, plus €1325.79, totalling €8740, and which are subject to all lawful deductions.

CA-00048483-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

I do not find this complaint to be well founded.

CA-00048483-002 Complaint under section 6 of the Payment of Wages Act, 1991.

I find this complaint to be well founded.

I require the respondent to pay the complainant his contractual entitlement to two months’ notice which amounts to the sum of €7181, plus €234 in respect of the food allowance, plus €1325.79, in respect of accrued annual leave.  The total amount to be paid to the complainant is €8740 and is subject to all lawful deductions.

Sovereign immunity; unlawful deductions; redundancy