FTD235

1. Appeal of Adjudication Officer Decision No(s) ADJ-00032176 CA-00042728-002.

BACKGROUND:

2. The Employee appealed the Adjudication Officer’s Decision to the Labour Court. A Labour Court hearing took place on 8 August 2023. The following is the Court's Determination:-

DETERMINATION:

Background to the Appeal

This is an appeal by Ms Fozia Rafiq (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00032176, dated 24 May 2023) under the Protection of Employees (Fixed-term Work) Act 2003 ‘the Act’). Notice of Appeal was received in the Court on 29 May 2023. The Court heard the appeal in Dublin on 8 August 2023 in the course of which the following gave evidence on affirmation: the Complainant and Ms Clare Farnon (on behalf of the State of Kuwait – ‘the Respondent’).

The Factual Matrix

The Complaint was employed by the Respondent as an accountant in its Cultural Office in Ranelagh, Dublin 6, pursuant to a one-year, fixed-term contract of employment. The Complainant’s employment commenced on 4 February 2020 and terminated on 3 February 2021, the Complainant having been given two months' notice in accordance with the terms of her written contract. The Complainant’s salary was €3,530.20 gross per month.

The Complainant referred her originating complaint to the Workplace Relations Commission on 26 February 2021 wherein she outlined her complaint under the Act as follows:

• “My contract was terminated in a manner incompatible with the due process and fair procedures that would be expected from [sic] an equivalent full-time employee.”
  
  

The Respondent seeks to invoke sovereign immunity to exclude this Court’s jurisdiction to determine the Complainant’s statutory appeal. In doing so, Counsel for the Respondent relies principally on the jurisprudence of the Irish courts and tribunals in this matter, citing in particular the judgment of the Supreme Court in Government of Canada v Employment Appeals Tribunal [1992] 2 IR 484 and the determination of the Employment Appeals Tribunal in Greene v Government of United States of America (UD289/2014). Counsel advised the Court that the State is not a signatory to the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property and has not ratified it and, in any event, the Convention is not yet in force as it has not been ratified by the required number of state parties.

Evidence of Ms Clare Farnon

The witness told the Court that she has been employed by the Respondent as an academic advisor for over six years, reporting to the Head of Mission. The latter in turn reports to the Minister of Higher Education in Kuwait.

The witness described in detail the educational policy of the State of Kuwait (‘Kuwait 2030’) whereby the Respondent funds third level education for a significant number of its young people in countries such as Ireland who then return to work in Kuwait on completion of their chosen education programme. Currently, the Respondent invests some €100,000,000 per annum supporting this initiative in Ireland alone.

The witness’s evidence is that there is a system of checks and balances built into the process whereby that very significant amount of funding is disbursed to the students who avail themselves of the scheme. Firstly, an academic advisor compiles the necessary information in relation to individual students – their visa status, details of their university course of study, their progression in the course, their bank account details – in order to prepare a memorandum for the accounts department recommending payment of a monthly living allowance, book allowance and merit payment, as appropriate, to the student in question. The request for payment is then verified by the accounts department and, if in order, it is sent to the office of the Head of Mission for final approval. The witness told the Court that all policy decisions in relation to the operation of the scheme are taken by the Ministry for Higher Education in Kuwait.

The Complainant’s Evidence

The Complainant outlined her educational qualifications – a BA earned in Pakistan and a one-year course on accounts and payroll. She told the Court that she is not a qualified accountant and has not sat any professional accountancy examinations. She said her job involved processing requests from academic advisors to make certain payments to Kuwaiti students studying at third level institutions in Ireland. She did not – she said – have any direct contacts with the students themselves. Under cross-examination, she accepted that her written contract specified that her terms and conditions of employment were determined by rules set out in circulars issued from time to time by the Respondent. She also 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.

The Law

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

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

The notice party in Government of Canada v Employment Appeals Tribunal, Mr Burke, had been dismissed from his employment as a driver at the Canadian Embassy in Dublin and referred a complaint of unfair dismissal to the Employment Appeals Tribunal. The Tribunal refused to accept that its jurisdiction in the matter was usurped by the Government of Canada’s right to sovereign immunity from suit and proceeded to determine the unfair dismissal complaint before it, in the respondent’s absence. The Government of Canada sought judicial review of the Tribunal’s decision. It was unsuccessful in the High Court but succeeded on appeal to the Supreme Court. The Court, echoing the judgment of O’Byrne J in Saorstat and Continental Steamship Company v de las Morenas [1945] IR 291, affirmed that the “doctrine of sovereign immunity is one of the generally recognised principles of international law which, by Article 29, s. 3 of the Constitution, Ireland has accepted as its rule of conduct in its relations with other states.”

McCarthy J, in his judgment, adopted “the observations of Lord Wilberforce in Congressio del Partido [1983] A.C. 244 at p.267 as being a correct statement of the current generally recognised principles of international law – one must decide ‘whether the relevant acts upon which the claim is based should, in that context, be considered as fairly within an area of activity, trading or commercial, or otherwise of a private law character … or whether’ it ‘should be considered as having been done outside that area, and within the sphere of governmental or sovereign activity.’ …. A contract of employment or contract of service is not, in that context, a commercial transaction nor is contract cleaning or contract care hire unless such be for the commercial purposes of the foreign mission.”

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

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

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

• “The Tribunal is of the opinion that the provision of security at an Embassy and Ambassador’s residence constitutes part of a foreign State’s exercise of Governmental authority. Having carefully considered the evidence adduced by both parties in relation to the nature and extent of the Claimant’s duties, the Tribunal is of the view that the Claimant’s day-to-day duties accord with the actuality of the inter-agency post employee position description above referred to and accepts that the provision of a “first line of defence” is an important and integral part of the US Government’s security system for the defence of its personnel and property against criminal and terrorist attack and cannot therefore be considered to be merely “functional and low level”. In the view of the Tribunal, the reliance, trust and confidence placed in a Security Guard at the Embassy and residence by the Respondent as part of the general security system creates a relationship which has the effect of involving the Claimant as a security guard in the interest, policy and business of the employing Government. Accordingly, the Tribunal finds that the Doctrine of Restrictive State Immunity applies in this case and that the Tribunal has no jurisdiction to hear the claim.”
  
  

Determination

Having carefully considered the Parties’ comprehensive written submissions, the evidence adduced and the case law opened to it, the Court finds that the Complainant’s role as an accountant in the Respondent’s Cultural Office in Dublin was intimately connected to the fulfillment of the Respondent’s third level education policy in accordance with the ‘Kuwait 2030’ programme. That being the case, the Court finds that the Respondent’s invocation of the doctrine of sovereign immunity in this case is made out. It follows that the Court does not have jurisdiction to determine the Complainant’s substantive appeal under the Act.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
TH	______________________
15 August 2023	Deputy Chairman