ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006370
McCann Fitzgerald Solicitors
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 03/10/2017
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, andfollowing the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The Complainant was employed with the named Respondent from 5th January 2009. He was provided with a written statement of his terms and conditions of Employment signed and dated by both Parties. The Complainant was absent from the employment on sick leave effective from 22nd February 2016. The Complainant was invited to attend a Disciplinary Hearing in relation to this absence by letter dated 1st July 2016. The Hearing was scheduled to take place on 5th July 2016. The Complainant did not attend the scheduled hearing. By letter dated 5th July 2016 from the Legal Representative of the Complainant, the Complainant requested his P45 and resigned from his position on medical advice. By letter dated 7th July 2016 the Complainant was dismissed by the Respondent.
The Complainant referred two complainants to the Workplace Relations Commission on 12th December 2016, one under the Unfair Dismissals Act, 1997 - 2015 alleging he had been constructively dismissed by the Respondent Company on 7th July 20216 and a second complaint under the Payment of Wages Act, 1991 in relation to payment of wages while on sick leave from 22nd February 2016 to 7th July 2016.
The Respondent raised a preliminary issue in relation to the correct identity of the Respondent and stated that the correct Respondent was a named country and that the Complainant was employed at the Embassy of this country in Ireland. The Respondent stated they were consenting to the change in the named Respondent’s name. They stated that the advertisement for the position stated that any appointment was subject to the employee having a PSA Licence and they were eligible to work in Ireland and that tax and prsi would also be liable to be paid in Ireland.
The Respondent also raised as a second issue - the doctrine of state immunity
Summary of Respondent’s Case: State Immunity
The Complainant was employed as a Security Guard at the named Embassy Dublin on 5th January 2009. His basic function in this position was as follows: “Provide security services to safeguard (named) Government personnel and property. Incumbent is required to perform security guard duties as per written instructions at fixed posts and conduct roving patrols at all Embassy facilities. Required to provide security services to instigate early warnings of impending danger to employees and dependents and will also assist local law enforcement authorities by identifying threats, both criminal and terrorist, directed at (named)Government personnel and property”.
The Complainant was trained and instructed on the various security systems and devices employed at both the Embassy and Residencies of the Ambassador and Deputy Chief of Mission. The Complainant was assigned to work at a number of specified locations around Dublin. In total, he worked in four different locations. He was involved in screening people and vehicles, body screening and examining cctv footage and patrol duties. He worked all three shifts – day/evening and night shifts. He was part of the Mission Security Force and the Regional Security Force.
The Respondent referenced several decisions of the Supreme Court of Ireland in support of their contention that state immunity applied in this case.
Summary of Complainants Case: State Immunity.
The Complainant argued that the Respondent was not covered by the exemption of state immunity and stated in evidence at the Hearing that he reported to the Mission Security Force and not the RegionaL Security Force.
Findings and Conclusions: Preliminary Issue – State Immunity.
In reaching my Decision I have given careful consideration to two Decisions of the Supreme Court in lreland in relation to the issue of state immunity and also with all the other cases identified by the Parties at the Hearing. In the decision of the Supreme Court in Government of Canada v The Employment Appeals Tribunal & Anor 1992, which involved an employee employed as a chauffeur at the Canadian Embassy, the Supreme Court held as follows “The employment of a chauffeur at the Canadian Embassy is clearly not a commercial contract in the ordinary sense of the word: it is a contract of service. Is it any different to having the heating system in the embassy repaired?. I believe it is. I think once one approaches the embassy gates one must do so on amber light. Prima facie anything to do with the embassy is within the public domain of the government in question. It may be that this can be rebutted as happened in the Empire of Iran case. I believe the element of trust and confidentiality that is reposed in the driver of an embassy car creates a bond with his employer that has the effect of involving him in the employing governments public business organisation and interests. Accordingly, I hold that the doctrine of restrictive state immunity applies in this case.”.
The second case involving the Irish Supreme Court involved the service of a claim of personal injury which was not upheld by the Supreme Court. This was appealed to the European Court of Human Rights which held there was no breach of the Complainant’s rights by the application of the doctrine of sovereign immunity by the Irish courts.
The issue of state immunity was also considered by the Employment Appeals Tribunal in the case of John Greene v Government of the United States of America UD289/2014 and MN106/2014 in which case the Complainant was employed as a Security Guard at the Embassy. The Tribunal held as follows “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 Government 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 accepted 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 therefore cannot be considered to be functional and low-level….the Tribunal finds that the Doctrine of Restrictive State Immunity applies in this case”. The Tribunal decided it had no jurisdiction in relation to the complaint.
The Complainant was afforded all opportunities at the Hearing to show how his duties as a Security Guard at the Embassy differed in any way from the duties of the Security Guard employed in the same Embassy in the above case.
Payment of Wages Act, 1991 – 2015 CA-00008724-001
On the basis of the evidence and my findings above and in accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare I do not have jurisdiction to hear this complaint as the Respondent is covered by the Doctrine of Restrictive State Immunity
Unfair Dismissals Act, 1977 – 2015 CA-00008724-0092
On the basis of the evidence and in accordance with Section 8(1) of the Act I declare I of not have jurisdiction to hear this complaint as the Respondent is covered by the Doctrine of Restrictive State Immunity.
Dated: 24th January 2018
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Doctrine of Restrictive State Immunity applies