Diplomatic Immunity and the Workplace Relations Commission

Introduction

The case of A Chauffer -v- An Embassy (ADJ00004364), examined the issue of whether the Workplace Relations Commission has jurisdiction to hear the complaints of employees of foreign embassies based in Ireland, should those embassies claim diplomatic immunity.

In this matter, the complainant was employed as a chauffer with the respondent embassy from 17 February 2014 until his employment was terminated on 31 May 2016.

The respondent embassy, by letter dated 27 June 2018, set out the refusal to submit to the jurisdiction of the Workplace Relations Commission.

Furthermore, the respondent embassy did not attend the scheduled hearing to present their case in relation to the issue of jurisdiction.

Notwithstanding, the Adjudication Officer proceeded to examine the jurisdiction of the Workplace Relations Commission in respect of this matter.

Legal Background - Diplomatic Immunity and Irish Employment Law

The principle of foreign state immunity is recognised in Article 29.3 of the Irish Constitution. Any deviation from that principle must be carefully considered.

There has been a changing trend in the case law.

In Government of Canada v. The Employment Appeals Tribunal and Brian Burke [1992] 2 I.R. 485 the jurisdiction of the Employment Appeals Tribunal (EAT) to hear the case of a dismissed chauffeur was challenged.

The Court upheld the jurisdiction of the EAT but the decision to terminate was, in due course, overturned in the Supreme Court.

The Court held, per McCarthy J. (adopting the dicta of Lord Wilberforce in Congreso del Partido [1983] A.C. 244 at 267) that it must decide;

‘whether the relevant acts upon which the claim is based should, in that context, be considered 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 government or sovereign activity’.

The Court held unanimously that a chauffeur fell within the restricted doctrine of immunity on the basis that any employee of a diplomatic mission falls;

‘within a bond with his employers that has the effect of involving him in the employing government’s public business….’

Per O’Flaherty J.

This was followed in Buthelezi v. Coy Dlamini and Thobeka Dlamini and The Republic of South Africa DEC-E2016-105 where three tests (similar to those set out by McCarthy J. above) were identified.

In Greene v. Government of United States of America [UD 289/2014, MN 106/201 the activities of a security guard were held to touch upon the actual business or policy of the US government.

Diplomatic Immunity, the EU and Irish Case Law

Turning to more recent cases, we note the decision in Asha Abdulahi Adan v Embassy of the Republic of Kenya (UD 2163/2011). 

The complainant in that case was employed as a cleaner. In May 2011, she informed her employer that she was pregnant. Her employer subsequently asked her to lift a heavy item and she said she could not do so due to her pregnancy. On May 30th, 2011 the employer informed her employment would end the following day.

She was told that she would have to re-apply for her job and attend for interview, but she failed to be appointed.

The EAT noted that under the Unfair Dismissals Acts, 1997 to 2007, the burden of proof rested on the employer to either justify the dismissal or claim that the Tribunal had no jurisdiction to hear the case on the grounds of sovereign immunity.

The EAT reviewed the case law on sovereign immunity and referring to the Supreme Court decision in Government of Canada v Employment Appeals Tribunal accepted that the doctrine of absolute sovereign immunity no longer existed.

The European Court of Justice (CJEU) recently concluded that absolute sovereign immunity no longer applied across the EU (see: Ahmed Mahamdia v People’s Republic of Algeria (Case C-154/11) below).

Diplomatic Immunity and Irish Employment Law

In the present case, the Adjudication Officer examined in detail the laws governing diplomatic immunity, with particular reference to both Regulation No. 44/2001 of the European Union and the convention on jurisdictional immunities of states and their property, adopted by the United Nations General Assembly in December 2004. 

The following was noted:

Regulation No 44/2001: This Regulation of the European Union was enacted to regulate certain differences between national rules governing jurisdiction and recognition of judgements across Member States.

Regulation 18 (2) provides as follows: Where an employee enters into an individual contract of employment with an employer who is not domiciled in a Member State but has a branch, agency or other establishment in one of the Member States, the employer shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that Member State”.

Regulation 21 provides as follows: The provisions of this section may be departed from only by an agreement on jurisdiction: 1. which is entered into after the dispute has arisen, or 2. which allows the employee to bring proceedings in courts other than those indicated in this Section”.

The CJEU in Case C – 154/11 Ahmed Mahamdia v People’s Republic of Algeria has interpreted Regulation 18, as follows:

49. It should be recalled that the functions of an embassy, as stated in Article 3 of the Vienna Convention on Diplomatic Relations, consist essentially in representing the sending State, protecting the interests of the sending State, and promoting relations with the receiving state. In the exercise of those functions, the embassy, like any other public entity, can act ‘iure gestionis’ and acquire rights and obligations of a civil nature, in particular as a result of concluding private law contracts. That is the case where it concludes contracts of employment with persons who do not perform functions which fall within the exercise of public powers.

50. As regards the first criterion mentioned in paragraph 48 above, an embassy may be equated with a centre of operations which has the appearance of permancy and contributes to the identification and representation of the State from which it emanates.

51. As regards the second criterion mentioned in that paragraph, it is clear that the subject-matter of the dispute in the main proceedings, namely a dispute in the field of employment relations, has a sufficient link with the functioning of the embassy in question with respect to the management of it’s staff.

52. Consequently, as regards contracts of employment concluded by an embassy on behalf of the State, the embassy is an “establishment” within the meaning of Article 18 (2) of Regulation No 18 (2) 44/2011 where the functions of the employees with whom it concludes those contracts are connected with the management activity carried out by the embassy in the receiving State.

The CJEU went on to find in relation to Regulation 18 (2) that “an embassy of a third state situated in a Member State is an establishment within the meaning of that provision, in a dispute concerning a contract of employment concluded by an embassy on behalf of the sending State, where the functions carried out by the employee do not fall within the exercise of public powers. It is for the national court seised to determine the precise nature of the functions carried out by the employee”.

The CJEU went on to find at Paragraph 61 of it’s Decision as follows: “Article 21 of Regulation No 44/2001 restricts the conclusion by the Parties to a contract of employment of an agreement on jurisdiction. Such an agreement must thus be concluded after the dispute has arisen or, if it was concluded beforehand, must allow the employee to bring proceedings before courts other than those on which those rules confer jurisdiction”.

UN Convention

Article 11 – Contracts of employment –

1. 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.

Paragraph 1 does 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; and/or

(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.”

Application to Present Case

Having found that the Workplace Relations Commission did have adjudication to hear the complaints before them by the former embassy chauffer, the Adjudication Officer went on to note that the respondent embassy had breached fair procedure and natural justice in contravention of [insert case law].

The Adjudication Officer found the complaint of unfair dismissal was well founded, awarding compensation of 4 weeks’ wages.

Further Information

For further information, please contact the author of this article, Barry Crushell.