SECTION 83, EMPLOYMENT EQUALITY ACT, 1998
(REPRESENTED BY NOEL O'GORMAN SOLICITORS, 7 FARNHAM ST, CO CAVAN)
- AND -
MS AIDEEN DAMERY
Chairman: Mr McGee
Employer Member: Mr Grier
Worker Member: Mr. Somers
1. Appeal Against Decision of The Director Of Equality Investigations Dec-E2001-039.
2. A Labour Court hearing took place on the 7th of July, 2004, in accordance with Section 83 of the Employment Equality Act, 1998. The following is the Court's determination:-
- The complainant, who is an Irish citizen, commenced work with the Italian Embassy in Dublin in April, 1984. On 3rd November, 2000 she referred a complaint of discrimination in respect of equal treatment and equal pay on grounds of race to the Office of the Director of Equality Investigations (ODEI). These allegations were communicated in writing to the Respondent on 20 November, 2000. On the 19th December, 2000 the Respondent’s legal representative notified the ODEI that the Respondent was claiming diplomatic immunity under Article 31 of the Vienna Convention on Diplomatic Relations and also that the Respondent was claiming Sovereign Immunity.In a preliminary decision issued on 20th December, 2001 the Equality Officer found that the ODEI had no jurisdiction to investigate the substance of the complainant’s allegations of discrimination on grounds of race against the Italian Embassy under the Employment Equality Act, 1998, by virtue of the Respondents claim of Sovereign Immunity in the matter.The complainant appealed the Decision to the Labour Court on 28th January, 2002. A Labour Court hearing took place on 6th July, 2004.Issue for consideration:The issue for consideration in this case is whether or not the Court can entertain a complaint against the Government of a Member State of the European Union. The Respondent contends that the Court has no jurisdiction to entertain the complaint by operation of the doctrine of Sovereign Immunity. This doctrine provides that a sovereign Government (or its agents) may not be impleaded before the Courts of another sovereign state. This doctrine should be distinguished from that of diplomatic immunity which relates to designated consular officials of a sovereign state and is governed by Article 31 of the Vienna Convention on Diplomatic Relations and the Diplomatic Relations & Immunity Act, 1967.Sovereign Immunity is a tenet of international law which is incorporated in domestic law by virtue of Article 29.3 of the Irish Constitution. This was determined by the Supreme Court inGovernment of Canada v The Employment Appeals Tribunal and Bourke  2IR 484(the Bourke case). The effect of the decision in that case was to quash a decision of the Employment Appeals Tribunal to entertain a complaint of Unfair Dismissal brought by a complainant against his employer, the Government of Canada. The Supreme Court held that the Tribunal did not have jurisdiction to entertain the complaint, as the Government of Canada could not be impleaded before the Tribunal. In its decision the Supreme Court distinguished between activity engaged in by a sovereign state which was in the nature of commercial dealings (which did not attract an immunity) and activity which touched upon the day to day activities of an Embassy (which did attract an immunity). The notice party was a chauffeur employed by the Canadian Embassy and it was held that this activity did attract an immunity. The decision of the Supreme Court in the Government of Canada case is binding on this Court. The Complainant must show that there are circumstances in her case which distinguish it from that case.The Complainant's Case:The complainant seeks to distinguish her case from the Bourke case on the basis that Italy, unlike Canada, is a member state of the EU and that her complaint is governed primarily by European Law.
Her arguments are set out as follows: -
(1) This dispute, unlike the Bourke case is between two EU parties and cannot be considered without regard to Community Law.
The Complainant asserts that, within the European Union, when there is a conflict with domestic legislation, European Law is Supreme. This proposition is accepted by the respondents
(b) Direct Effect
The Complainant again contends that the Treaty is directly effective against member States. This proposition is also accepted by the respondents
Both 2(a) and (b) are based on the premise that the Member States have limited their sovereign rights within limited fields, and the Community exercises the sovereign rights ceded by Member States.
(3) Effective Protection
Pursuant to Article 10 of the EC Treaty, the National courts of the Member States are bound to protect the rights conferred on individuals by that law. Therefore, individuals must have access in their National courts to effective remedies. This proposition is again accepted by the respondents.
(4) Incorporation of Community Law into Irish Law
The complainant contends that in order to reconcile Irish Constitutional law with the supremacy and direct effect of Community law, the Constitution was amended(3rd amendment to the constitution) by the addition of Article 29.4.3 (now 29.4.10) thus providing,within the Constitution itself, a bar on its (the Constitution’s) application to Community law.
This Article states:
“No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of the European Union or the Communities, or prevents laws enacted, acts done or measures adopted by European Union or by the Communities thereof, or by bodies competent under the treaties establishing the Communities, from having the force of the law in the State”.At the same time the European Communities Act 1972 was passed by the Oireachtas, thus incorporating the treaties and all other Community law into Irish law. Section 2 of the Act states:
“From the first day of January, 1973, the treaties governing the European Communities and the existing and future acts adopted by the Institutions of those Communities and by bodies competent under the said treaties shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in those treaties”.
(5) Sovereign Immunity
The complainant contends that Sovereign immunity has never been made the subject of domestic legislation. The principle is part of our domestic Law by virtue of the provisions in Article 29.3 of the constitution . However the EC treaty has been the subject of domestic legislation and as such is immune to constitutional challenge, The complainant therefore contended that Community legislation takes precedence. In support of this contention the complainant referred to certain decisions of the European Court of Justice, which the Complainant stated, not only demonstrate that a doctrine of restrictive sovereign immunity exists within Community law, but also defines the positions to which it should apply. The complainant took the view that Article 39 which dealt with the free movement of workers and in particular the provisions of Article 39.4, which dealt with the derogations therefrom were applicable to her case. The complainant referred the Court toCase 152/73 Sotgi v Deutsche Bundespost. andCase 149/79 Commission v Belgiumwhich, she contended, were in conflict with the decision of the Supreme Court in the Bourke case.The complainant contended that, in the Bourke case, the Supreme Court established that a form of restrictive Sovereign Immunity applies in Ireland by virtue of the provisions of article 29.3 of the Constitution. This form restricts the principle of Sovereign Immunity to cases involving a foreign state’s public acts (jure imperii) and does not extend to those based on its commercial or private acts (jure gestionis).
In his opinion, O’Flaherty J stated that“prima facie”anything to do with an embassy is within the public domain of the Government in question. In relation to Mr Bourke’s post specially, he declared:
“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”.
This, the complainant states is in contrast to the position held by the European Court of Justice, which in the case of the Commission V Belgium considered such public posts to:
“presume on the part of those occupying them the existence of a special relationship of allegiance to the State and reciprocity of rights and duties which form the foundation of the bond of nationality."
The complainant contended that this presupposed a much deeper relationship than that of secretary and employer before the Doctrine of Sovereign Immunity would become applicable.
In addition the complainant referred to a number of cases in the Italian Courts where the Courts had found that the embassies in question did not have sovereign immunity.
The complainant therefore submitted that, as Community law has supremacy in this case, the Bourke case must be interpreted in harmony with Community Law and that therefore, the type of Sovereign immunity claimed by the Respondents cannot apply. Article 29.3 is qualified by the provisions of 29.4.10. Community Law and any inherent rights thereunder are given an express preferential treatment in the Constitution that the generally recognised principles of International Law do not enjoy.
Finally the complainant submits that by their actions the Respondents have waived diplomatic immunity.Respondent’s Case
The Respondent accepts the general principles of Law as set out by the complainant with the obvious exception that the Respondent does not accept that the principle of Sovereign Immunity has been made subsidiary to the provisions of domestic law incorporating the provisions of the EU Treaty.
The Respondent states that this Court is bound by the findings of the Supreme Court in the Bourke case. The Respondent in particular states that the Court is bound by the findings of O' Flaherty J. who in a detailed and considered judgment dealt with the origins of state immunity.
He referred in particular to the judgment of Hannah J in Zarine –v- Owners of SSs “Ramava”. He adopted the findings of Hannah J. in recognising a form of restricted Sovereign Immunity rather than the absolute immunity that had gone before. His conclusions were as follows:-"1. I doubt if the doctrine of absolute Sovereign Immunity was ever conclusively established in our jurisdiction.
2. Assuming that it was, I believe that it is a doctrine that has now expired.
3. The doctrine flourished at a time when a sovereign state was concerned only with the conduct of its armed forces, foreign affairs and the operations of its currency. Now with so many States engaging in the business of trade, direct or indirect, the rule of absolute immunity is not appropriate to such conditions.
4. 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 then went on to consider whether the Complainant's claim could fall within the exception outlined in paragraph 4 above and stated:
"I think once one approaches the Embassy gates one must do so on an amber light. Prima facie, anything to do with the Embassy is within the public domain of the Government in question. I believe 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. Accordingly l hold that the doctrine of restricted State immunity applies to this case.”
The respondent submitted that in the same case Hederman J. held that the doctrine of Sovereign Immunity is one of the generally recognised principles of the International Law which, by Article 29.3 of the constitution, Ireland has accepted as its rule of conduct in its relations with other states. He noted that the Oireachtas has never sought to qualify or modify the position. He further noted that the work done by the Complainant was work which related to the exercise of the diplomatic functions of the Ambassador and he was satisfied that it fell within the area of Sovereign Immunity envisaged and adopted by the constitution. He did not feel it necessary to consider the extent to which the absolute doctrine of Sovereign Immunity had been limited.
The Respondent submitted that the decision in the Bourke case had been followed in three subsequent decisions:
- Caffrey- v – Instituto Cervantes UD 567/96. The Employment Appeals Tribunal found that it had no jurisdiction to hear the claim of an employee employed by a commercial enterprise owned by the Spanish Embassy.
- Deirdre Geraghty – v – Embassy of Mexico and Daniel Dultzin UD 899/87. The Employment Appeals Tribunal followed the decision in the Government of Canada case and held that it had no jurisdiction to hear the claim of a secretary working in the Mexican Embassy.
- James Swan –v- the Egyptian Government Irish Times 18th July 2002. The High Court dismissed the claim of the Plaintiff for an “end of service” payment when he retired as the Embassy driver. White J. indicated that he was constrained by the Supreme Court ruling on Diplomatic immunity and dismissed the action.
The Bourke case was also followed in the Complainant's own case before the Employment Appeals Tribunal in her claim under the Unfair Dismissal Acts, 1977- 2001 (Case number : UD775/2003). The decision was handed down on the 12th day of March 2004 but is currently under appeal to the Circuit Court.
The Respondents therefore contended that the Law in this jurisdiction is as set out in the Bourke case. They submitted that the Irish Government has not seen any need to change this by legislation. The Respondents then referred to the approach taken in similar matters in other common law Countries such as the United Kingdom, South Africa, Pakistan, New Zealand, and some civil law countries including Germany all of which have been taken into account by this Court in reaching its decision.
In relation to the Italian cases referred to in the Complainant's submission, the Respondent’s view was that Italian case law was of limited importance given that the Italian legal system is completely different to the Irish one. They stated that all of the Italian cases mentioned pre-dated the Bourke case and that the correct comparison to be made was with Countries with a Common Law system.
In relation to the Complainant's contention that the exclusions in Article 39 of the Treaty do not apply, the Respondents contend that Article 39 does not deal with Sovereign or State Immunity but with the freedom of movement of workers within the E.U. Article 39(4) states that the provisions of Article 39 do not apply to those working in the public service. The derogation in Article 39(4) recognises that there are some positions within the public service of a member State that should be kept for nationals of that Member State. However the “public service”referred to in Article 39(4) would be the equivalent of what we would refer to as the “civil service”. The “diplomatic service” of a Country is an entirely different concept.
Article 39 confers rights on workers in the same way as the Employment Equality Act, 1998 confers rights on workers. The Respondents contend that the issue to be decided here is whether the Labour Court is at liberty to deal with the substantive issues alleged by the Complainant. It is their submission that it cannot do so because of the principle of Sovereign/State Immunity. The fact that Italy is a member of the E.U. in no way diminishes its sovereignty in this regard and while Community Law extends to that jurisdiction the generally recognised principle of International Law that is, Sovereign/State Immunity takes precedence in cases such as this.
The Respondent acknowledges that the position would be different if the Complainant were an Italian citizen employed in the Irish Civil Service seeking redress from the Irish Courts. In such a situation, because the principle of Sovereign/State Immunity would not apply, the Court could have regard to the rights contained within Irish legislation and also those rights contained within the E.C. treaty which are directly effective in Ireland.
EUROPEAN CONVENTION ON HUMAN RIGHTS
The Respondents also requested the Court to have regard to the European Convention on Human Rights and whether the passing of the European Convention and Human Rights Act 2003 has altered the situation in Ireland.
In particular the Court was referred to the judgment of the European Court of Human rights in Fogarty V The United Kingdom 2002 IRLR 148 which, the Respondents stated, was authority for the proposition that the grant of Sovereign Immunity to a State in civil proceedings pursues the legitimate aim of complying with International Law to promote good relations between States through the respect of another State’s sovereignty.
The complainant in response to this contention stated that while the European Court of Human rights upheld the Doctrine of Sovereign Immunity it also indicated certain circumstances in which it might not.
In the Fogarty case the Court stated that when selecting its foreign service officers a State has diplomatic immunity. However, this may no longer be the case in certain situations once the individual concerned has been hired. The complainant stated that since she had worked for the Embassy for many years the decision of the Court of Human Rights in Fogarty was not applicable to her circumstances.
Both parties and in particular the Complainant who represented herself are to be congratulated for the helpful and detailed submissions they made.
Can the Embassy be held to have waived its immunity in this case?
In the Geraghty case quoted above the Employment Appeals Tribunal stated“because the principle of Sovereign Immunity is so well established as part of Irish Law and is part of International Law which governs relations between sovereign States, it is clear that any waiver of that principle must be express. Waiver cannot be implied. An express waiver would exist if the Embassy so informed the Court, Tribunal or other forum before whom somebody has brought a complaint”.
There has been no express waiver of immunity in this case. In fact immunity is expressly invoked in the Contracts of Employment of the Complainant and when filing the Appearance herein. Therefore the Court finds that the Respondents have not waived their immunity. The question is whether they can rely on that immunity.
Article 29.3 of the Constitution states:
"Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States."
Article 29.10 states:
"no provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities or prevents laws enacted, acts done or measures adopted by the European Union or by the Communities or by institutions thereof or by bodies competent under the Treaties establishing the Communities from having the force of law".
It would therefore appear that to a certain extent, article 29.3 may be qualified by Article 29.10 in a situation where European Community Law might apply.
This Court is satisfied however that such a consideration does not apply in this case. The Bourke case revolved around a claim under the Unfair Dismissals Act which was not legislation enacted or necessitated by the obligations of membership of the European Community. In the instant case also the Complainant is in the same position . She has taken a case for discrimination on the grounds of race under the Employment Equality Act, 1998. While the gender discrimination provisions were enacted in compliance with the States obligations under the EU Treaty, the provisions in relation to racial discrimination, at the time the Complainant brought her claim, November, 2000, did not form part of domestic law at that time.
As McCarthy J stated in the Bourke case:
"whatever the implications may be in domestic law, whatever the rights might arise at first sight in respect of the Unfair Dismissals Act, unless it can be shown that there is a conflict with some private constitutional right, that matter is entirely governed by whatever are established to be the generally recognised principles of international law."
In this Court's view, the Complainant has not established any constitutional right existing at the time she brought her complaint which would justify this Court in setting aside the Doctrine of Sovereign Immunity.
The complainant refers to Article 39.4 of the Treaty, which, she says, has the effect of restricting Sovereign Immunity under Community Law to cases involving certain types of employment in the public sector.
Article 39 of the Treaty (formerly Article 48) deals with free movement of workers. Article 39.4 provides a derogation from the general requirement to allow workers from one Member State to freely enter employment in another Member State.
The rationale for Article 39.4 is that certain sensitive posts in the public service of a Member State can be reserved for nationals of that state. The Article is given a very restrictive interpretation and only a limited range of posts can come within its scope. Article 39.4 deals with restriction on the right to enter the public service but not on the conditions of employment that can be offered to a person who has been admitted to such a post. If a national of one member state obtains employment in the public service of another member state they are entitled to be treated equally to those who are nationals of the host state (regulation 1612/68). This is the rationale behind theSotgiu v Deutscht Bundesbank Bundespostcase.
This Court takes the view Article 39.4 does not have applicability in cases where Domestic Law is the applicable law. SeeR V Saunders Case 175/78, in which the Court of Justice decided that where a matter is wholly internal to a Member State, Article 39 and regulation 1612/68 do not apply.
In this particular case, the contract which the Complainant entered into was made in Ireland, the Complainant at all relevant times worked in Ireland, and the legislative provision upon which she is seeking to rely is a provision enshrined in domestic legislation and at the relevant time was not one necessitated by our obligations under the EU Treaty.
The Respondent is therefore entitled to rely on the doctrine of Sovereign Immunity and the only question for this Court to decide is whether the Complainant comes within the restrictions set out in the Bourke case.
Applying the principles set out by O' Flaherty J in the Bourke case and outlined earlier in this determination the Court finds that the work done by the Complainant was of such a nature that it created an element of trust and confidentiality to such an extent that the Complainant was participating in the public Acts of the Italian State.
Accordingly the doctrine of restricted Sovereign Immunity applies to this case.
Since the law of the European Community has no application the complaint falls to be decided in accordance with the provisions of Irish domestic law. The doctrine of Sovereign Immunity is part of that law. In the circumstances of this particular case the respondents are entitled to rely on that doctrine, Accordingly, the Court has no jurisdiction to entertain this complaint.
The Court therefore dismisses the appeal.
Signed on behalf of the Labour Court
14th December, 2004______________________
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.