Complainant

Respondent

Parties

Charlene Sadik

The International Organization For Migration

Representatives

Cillian McGovern BL instructed by Crushell & Co Solicitors

None in attendance

Act

Complaint Reference No.

Date of Receipt

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

CA-00064866-001

19/07/2024

The complainant was employed by the respondent from 2011 until 8 September 2023 when she resigned from employment.  The complainant claims constructive dismissal and seeks compensation as redress.

Written submissions received set out the respondent’s position on immunities in the State of Ireland, which it was submitted included the respondent’s immunity from legal process and execution.  It maintained non-waiver in respect of the proceedings taken by the complainant before the Workplace Relations Commission.

The concepts of sovereign immunity and diplomatic immunity have been considered and approached in a similar manner; they are not absolute concepts, and the concept of immunity of international organisations is no different.  The complainant’s work did not relate to the activities of the mission or the business of the international organisation; the complainant’s role on her return from maternity leave was reduced to that of an intern and cannot be considered to have touched on the business or policy of the mission.  The complainant did not have any of the privileges attached to diplomatic staff and it follows that no immunity from suit should attach to the respondent organisation.

It was submitted that the reason for the delay in referring the within claim to the WRC was because the complainant was compelled to engage with the respondent’s mechanisms in accordance with internal processes.  The complainant had persevered with those processes in the hope of a positive outcome and being reinstated to her role.

Complainant’s oral evidence

The complainant commenced employment as an intern with the respondent in November 2011. She was promoted over the years and, at the time of her resignation in September 2023, she held the role of National Protection and Programme Officer.   The complainant gave evidence of the nature of her work as an intern and in other roles with the respondent, through to the nature of her work as a National Protection and Programme Officer. 

In or around November/December 2020, the complainant raised concerns with HR based in Geneva regarding the Chief of Mission (the “CoM”) and what was happening in the mission.   The CoM was made aware that complaints had been made.  From that point, the complainant felt the CoM wanted the complainant gone from the mission and her working life became particularly difficult.   The complainant’s tasks and responsibilities were reassigned without consultation, and the complainant was increasingly excluded and isolated in the office. The complainant’s participation in a promotional process in January 2021 to be formally recognised in the role of National Protection Officer was made more difficult.  The position had been sanctioned by headquarters, and the complainant was formally appointed to the post however tasks and responsibilities previously agreed were reassigned, with the complainant effectively put back to her original role.  The complainant outlined conduct she considered unwarranted and unacceptable.

The complainant was on maternity leave from the end of July 2021 until in or around the end of June 2022.  On the complainant’s return to work, she found her tasks and desk had been reassigned.  The complainant had seen part of her role advertised when she was on maternity leave and there was someone in that role on the complainant’s return from maternity leave.  The complainant was told that there was no set role for her at that time and to wait to see what could be assigned.  The complainant reverted to undertaking duties well below her grade as a senior manager and she had no responsibility.   The work was similar to the work the complainant had undertaken when she first joined the organisation; photocopying, answering the door and telephones and arranging meetings.   The complainant did not feel like she was contributing to the business of the mission at that point.

The complainant believed she was demoted and experienced unwanted conduct as a result of the complaint she made about the CoM in December 2020.  The complainant found the situation upsetting and embarrassing; she knew there was no future for her with the respondent.  

The CoM left the mission in February 2023, and a new CoM commenced in or around June/July 2023.  The complainant understood from the new CoM that she would not be reinstated in her role and would be unable to resume her previous duties.  The complainant took the decision then to resign and began to look for other work. 

The complainant began looking for alternative employment in June 2023 and, once secured, resigned from her employment with the respondent on 8 September 2023 and took up alternative employment that same month.  The complainant’s remuneration in her new role is more beneficial than what she earned with the respondent.

For approximately 18 months before the complainant resigned from employment, she was going through the respondent’s internal grievance procedures.  The complainant outlined the internal procedures and processes and her engagement with the various units.  The complainant’s resignation in September 2023 coincided with the complainant being advised that a formal investigation was to be undertaken.  The complainant was subsequently informed that the process would not be continuing; it concluded in April/May 2024.  

By way of written submissions in relation to the claim referred by the complainant, a former staff member, the respondent set out its position on the immunities of the respondent in the State of Ireland.

The respondent is an intergovernmental organisation established in accordance with the Constitution of the Intergovernmental Committee for European Migration (the respondent’s former designation), a multilateral treaty of October 1953, as amended.

By reference to its Constitution and a Cooperation Agreement between the respondent and the Government of Ireland of 5 June (the “Cooperation Agreement”), the respondent enjoys privileges and immunities including immunity from all forms of legal process, except to the extent that in a particular case the respondent has expressly waived its immunity.  Neither the respondent’s Constitution nor the Cooperation Agreement provide for any exceptions to the respondent’s privileges and immunities. The respondent has not waived its immunities before the courts or any other judicial bodies of the State of Ireland in the present case or in any other case.

The State of Ireland recognises the respondent’s immunity from jurisdiction by reference to the following:- 

(i)               Ireland joined the respondent as a Member State in 2002.

(ii)              By its membership, Ireland accepts the respondent’s Constitution, including the obligations contained therein and specifically the extension of necessary privileges and immunities to the respondent; Article 23 of the respondent’s Constitution provides that the respondent shall enjoy the privileges and immunities necessary to exercise its functions and achieve its objectives.

(iii)            The privileges and immunities of the respondent and its officials in the State of Ireland are developed further in the Cooperation Agreement, a bilateral treaty that has been incorporated into Irish legislation through S.I. No. 569/2015 - International Organization for Migration (Privileges and Immunities) Order 2015.  

The concepts of jurisdictional immunity of sovereign states, on the one hand, and the privileges and immunities of international organisations, on the other hand, have a different nature and origin. The jurisdictional immunity of states is a concept in customary international law that aims to protect the sovereignty of a state by placing it outside the jurisdiction of other states. Over time, a restrictive immunity theory for states has emerged in customary international law, where a distinction is made between acts jure imperii (governmental or sovereign acts of a state) and acts jure gestionis.  Unlike the situation with sovereign states, the privileges and immunities of the United Nations system organisations are of a treaty law nature. In the case of the respondent, these originate in its Constitution and in the bilateral agreements it concludes with states.  The exception that is often applied to the immunity of states, in situations where a state is undertaking commercial activities, is not provided for in the respondent’s Constitution nor in the Cooperation Agreement and does not apply to the respondent.

Unlike the employees of embassies of states in Ireland, the respondent’s staff members have access to a system for the administration of justice, with ultimate recourse to the Administrative Tribunal of the International Labour Organization.  This system ensures that the respondent’s immunity from jurisdiction does not leave staff members without an avenue for recourse for any complaints. Furthermore, the preamble to the Cooperation Agreement recognizes the respondent’s rules and procedures regulating its relationship with staff.  

The respondent outlined its internal regulatory framework for setting conditions of employment of staff members, including staff members in Ireland, and its system for the administration of justice, which staff members are expected to use instead of going to national courts, rand which reflects the respondent’s immunity from jurisdiction.

The complainant’s employment with the respondent was governed by the respondent’s Unified Staff Regulations and Rules and administrative instructions.  The complainant had access to the justice mechanisms established by the respondent’s Council and was expected to use them.  The complainant was explicitly informed about legal remedies, and was provided information by the respondent’s Ethics and Conduct Office in April 2024 of her right to appeal using the respondent’s system and of the procedure for reporting misconduct.   The complainant, in lieu of following the respondent’s procedures, filed the within complaint with the WRC.

The WRC is not competent to resolve this internal dispute between the complainant and respondent. 

It was submitted that national law should not be applied to the claim, that the claim be dismissed for lack of jurisdiction and that the status and privileges and immunities of the respondent and its staff members in Ireland are fully respected.

The claim under section 8 of the Unfair Dismissals Acts 1977-2015 (the “1977 Act”) was referred to the Commission on 18 July 2024. 

By way of written submissions dated 31 October 2024, the respondent set out its position on the immunities of the respondent in the State of Ireland, including its immunity from jurisdiction. 

The complainant’s claim was one of constructive dismissal; she resigned from employment on 8 September 2023.

Two jurisdictional issues were identified on the first hearing date:-

(i)               immunity from legal process, as asserted by the respondent, and

(ii)              the statutory timeframe for referral of a claim under the 1977 Act.

I reserved my position on the complainant’s application on the first hearing date to address the above-mentioned issues in a preliminary manner in circumstances where I was informed that oral evidence would be required in relation to same and having regard to the nature of the claim. 

On the second hearing date, the complainant’s application was for the entirety of the case to be dealt with on that date.  In the interests of efficiency, the hearing proceeded on that basis.

There was no attendance by or on behalf of the respondent on either hearing date scheduled for this case.  I am satisfied that the respondent was on notice of the hearing arrangements and further that it determined not to attend the hearing.

Immunity from legal process and execution

I note correspondence dated 19 November 2024 from the Department of Foreign Affairs to the Commission in relation to the within claim which included a confirmation that the respondent enjoys immunity from legal process and execution in accordance with Article 2 of the Cooperation Agreement of June 2015 between the Government of Ireland and the respondent (the “Cooperation Agreement”), and further confirmed that S.I. No. 569 of 2015 was made to give effect in the State to the privileges and immunities set out in the Cooperation Agreement.   The correspondence went on to state that the “application of the relevant law to the facts of any individual case is of course a matter for the Workplace Relations Commission”.  I further note the role / function of the Department of Foreign Affairs in respect of the within proceedings, as confirmed by that Department, which was to transmit documentation between the Commission and the respondent organisation.  

The respondent, by its written submissions, has raised an issue as to whether the complainant is entitled to maintain her claim under the 1977 Act by reference to privileges and immunities, which it was submitted Ireland has assumed under international law through its membership of the respondent organisation, and which have been developed further in this jurisdiction through S.I. No. 569/2015.  The respondent drew a distinction between the concepts of jurisdictional immunity of sovereign states and privileges/immunities of international organisations and further referred to its internal employment disputes regulatory framework and dispute resolution mechanisms for staff members.

It was submitted on behalf of the complainant in response that the immunities asserted by the respondent should be approached in the same manner as the concepts of sovereign immunity and diplomatic immunities.

As the immunity put forward by the respondent is a procedural bar to jurisdiction, I must address it in the first instance.

The respondent is an intergovernmental organisation, dedicated to promoting humane and orderly migration, with headquarters in Geneva.   

Article 23 of the respondent’s Constitution provides as follows in relation to privileges and immunities:-

“(1) The Organization shall enjoy such privileges and immunities as are necessary for the exercise of its functions and the fulfilment of its purposes.

(2) Representatives of Member States, the Director General, the Deputy Director General and the staff of the Administration shall likewise enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization.

(3) These privileges and immunities shall be defined in agreements between the Organization and the States concerned or through measures taken by these States.”

Ireland became a member of the respondent organisation in June 2002, thereby accepting the respondent’s Constitution and participating in its Council.  

I am not satisfied that the respondent’s submissions on its Constitution, Ireland’s acceptance of same through its membership of the respondent organisation and a resulting obligation on the State, assumed under international law, to extend the necessary privileges and immunities to the respondent dispose of the issue of immunity in the within proceedings for the following reasons.  Article 23(1) of the respondent’s Constitution provides for privileges and immunities “as are necessary for the exercise of its functions and the fulfilment of its purposes” which I do not understand to mean unlimited immunities.  Furthermore, where domestic legislation on the matter of the respondent’s immunities in the State has been enacted, the submissions on international law must be examined vis-à-vis domestic law.   In my view, this corresponds with Article 23(3) of the respondent’s Constitution.  It is also of note that the respondent does not challenge the domestic law but relies on it in furtherance of its submissions on immunity from suit.  

The respondent submits that the Cooperation Agreement, a bilateral treaty between the respondent and the Government of Ireland, has been incorporated in domestic law through S.I. No. 569 of 2015 – International Organization for Migration (Privileges and Immunities) Order 2015. 

The preamble to the Cooperation Agreement considers that the purpose and functions of the respondent and the activities carried out by it and its officials, warrant the granting in this jurisdiction to the respondent and its officials of privileges and immunities substantially similar to those accorded to specialized agencies of the United Nations and their officials. 

Article 1 of the Cooperation Agreement confirms the respondent’s legal personality in the State and Article 2 provides:-

“The Organization shall enjoy immunity from legal process and execution, except to the extent that the Organization shall have expressly waived any such immunity in a particular case.”

It is worth recalling at this point the respondent’s submission that there was no waiver of immunity in this particular case.

Articles 7, 8 and 9 of the Cooperation Agreement refer specifically to the immunities and privileges of the Chief of Mission, officials of the respondent and Member State representatives.   Article 11(3) provides that the respondent shall co-operate at all times with the appropriate authorities of Ireland to facilitate the proper administration of justice, secure the observance of Irish law and prevent the occurrence of any abuses in connection with the privileges, immunities and facilities mentioned in Article 11.

Acknowledging the respondent’s submissions on the Cooperation Agreement and in particular Article 2 concerning immunity from legal process and execution, I turn to consider the Cooperation Agreement in the context of the domestic legislative framework.

The Diplomatic Relations and Immunities Act 1967, as amended, (the “1967 Act”) ratifies certain international conventions and agreements and provides more generally under Part VIII for designation of an international organisation, community or body and the conferral of privileges and immunities.

The respondent was designated as an international organisation for the purpose of Part VIII of the 1967 Act under S.I. No. 89 of 2002. 

S.I. No. 569 of 2015 was made pursuant to section 42A of the 1967 Act which, at the time the order was made, provided:-

“The Government may by order make provision to enable-

(a)   international organisations, communities or bodies, their institutions or organs and their property, and

(b)   persons,

to have and enjoy in the State any inviolability, exemptions, facilities, immunities, privileges or rights (other than inviolability, exemptions, facilities, immunities, privileges or rights not conferred upon, or afforded in relation to, sending states or missions under the Vienna Convention) provided for in relation to them by an international agreement to which the State or the Government is or intends to become a party.”

S.I. 569 of 2015 expressly states that the Cooperation Agreement shall apply for the purposes of section 42A of the 1967 Act. 

On a plain reading of section 42A of the 1967 Act and S.I. No. 569 of 2015, I find that their effect is to reflect the Cooperation Agreement as an international agreement for the purpose of section 42A of the 1967 Act, which enabled the making of an order (S.I. No. 569 of 2015) conferring upon the respondent and its persons any inviolability, exemptions, facilities, immunities, privileges or rights similar to those conferred upon or afforded by the relevant international conventions or international agreements. 

Statutory timeframe for referral of a claim

On the statutory timeframe for referral of a claim to the Commission under the 1977 Act, the complainant submitted reasonable cause for the delay in referral of the claim and extenuating circumstances which precluded filing, namely the complainant’s involvement in a lengthy internal complaints process which the complainant was told had to be followed due to privileges and immunities.  The complainant referred to engagement with multiple units and designated personnel in the context of the respondent’s internal procedures.  The complainant’s evidence was of her resignation in or around the time when a formal investigation was to occur, but that she continued to contribute to the investigation until it concluded on a technicality in April / May 2024. The complainant’s engagement with the respondent’s processes concluded at that stage with the complainant advising that she would get legal advice.

By way of written submissions, it was submitted that evidence would be tendered in relation to the complainant’s mental capacity to refer the claim within the six-month period of the date of dismissal. It was further submitted at the hearing that the reason for the delay in referral of the claim to the Commission was the complainant’s engagement with the respondent’s internal processes.

There were no submissions from the respondent on this issue.

Compliance with the statutory timeframes for referral of a claim under the 1977 Act is a jurisdictional issue, in other words, compliance with the relevant statutory timeframes is a prerequisite to adjudication of the substantive claim.

Section 8(2) of the 1977 Act provides:-

“A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in [regulations under subsection (17) of section 41 of the Act of 2015]) to [the Director General]—

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,

and a copy of the notice shall be given by the [Director General] […] to the employer concerned as soon as may be after the receipt of the notice by the [Director General].”

It was accepted by the complainant that the claim was not referred within 6 months of the date of dismissal.  The complainant submitted reasonable cause for an extension of time in accordance with section 8(2)(b) of the 1977 Act.

The well-established test for reasonable cause is that set out by the Labour Court in Cementation Skanska v Carroll [DWT0338] where the Court stated:-

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

I cannot find that the grounds put forward by the complainant for not having referred her claim within six months of the date of dismissal amount to reasonable cause for the following reasons.  There was no information before me to suggest that the complainant’s involvement in the respondent’s internal procedures prevented her from referring a claim to the Commission.  The complainant referred to being in a poor mindset, how she was at rock bottom in mid-2023 and how she did not have the capacity or headspace to deal with any other process.  However, I note that the complainant began seeking alternative employment from mid-2023, took up new employment in September 2023 and continued to engage with the respondent’s processes up until April/May 2024.   The complainant’s evidence of the respondent’s procedures was of going through various stages and being redirected in internal procedures.  The material point is that the complainant engaged in those internal procedures after September 2023 while time was running from the date of termination of her employment for the purpose of the 1977 Act.   The complainant’s evidence was that she wanted to resolve the matter through the respondent’s internal processes however I am not satisfied that this constitutes reasonable cause for the complainant not initiating a claim under the 1977 Act within 6 months of the date of dismissal.

In this regard, I note the Labour Court’s determination in Business Mobile Security Services Ltd t/a Seneca Ltd v John McEvoy (EDA1621) which considered timeframes under the Employment Equality Acts 1998-2015 and a complainant’s utilisation of internal grievance procedures before commencing proceedings under those Acts.  The Court held:-

“… that in the particular circumstances of this case the Complainant made a choice and must take the consequences of that choice. He chose not to pursue a complaint under the Act, allowed time to pass and found himself statute barred when his chosen procedure did not resolve the matter to his satisfaction.

The Court finds that such a decision cannot justify the delay in bringing proceedings under the Act and accordingly determines that the complaint is statute barred.

The Complainant, in the alternative sought an extension of time. He relies on the same arguments as set out above and in addition submits that he meets the tests set out by the Court in the settled case law. In particular he submits that he has explained reason for the delay and submits that it was commensurate with the duration of the grievance procedure. He submits that he acted immediately after the outcome of the process was available to him.

…

For the reasons set out above the Court finds that the Complainant opted not to present a complaint under the Act and belatedly changed his mind when his chosen alternative course of action did not avail him. The Court finds, in the circumstances of this case, that the Complainant has not set out reasons such that would justify the delay in bringing proceedings under the Act. Accordingly, the Court rejects the application to extend time.”

Following the reasoning set out above, I find that the complainant has not established reasonable cause for not initiating a claim for redress under the 1977 Act in accordance with section 8(2)(a). 

Accordingly, I find that the claim is statute barred, and it follows that I do not have jurisdiction to deal with same. 

The claim referred to the Commission is statute barred. 

In the circumstances, my decision under section 8 of the 1977 Act is to dismiss the claim against the respondent.

Unfair dismissal – Immunity from jurisdiction – International organisation – Immunities and privileges – International law – Domestic law – Statutory timeframe for referral of claims