Embassies may not claim diplomatic immunity on workers’ rights

Embassies in the Republic may no longer claim diplomatic immunity from laws governing the workplace as it applies to their non-diplomatic staff, according to a determination handed down by the Labour Court.

In what is being described as “a significant evolution in the law of sovereign immunity”, the Labour Court has ruled an academic advisor working at the Kuwaiti Cultural Office in Dublin may bring a case under the Unfair Dismissals Act (1977).

Jurisdiction in the case had last year been rejected by the Workplace Relations Commission (WRC), on grounds of Kuwaiti diplomatic immunity.

The State of Kuwait has six weeks in which to appeal the Labour Court determination to the High Court.

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Nada Kanj, a citizen of both the Lebanon and Ireland who is fluent in Arabic and English, was employed in the Kuwaiti Cultural Office, one of a number of such offices around the world whose purpose was to maintain links between educational and research institutions in Kuwait and in host countries.

Kuwait currently funds some 500 students attending third level college in Ireland at a cost of about €50 million a year. The Dublin office assists the students to get Garda clearance and open bank accounts, and pays student college fees and allowances, air fares as well as books and computer costs.

Administrative

Ms Kanj, who was represented by Tiernan Lowey BL instructed by Cullen, Tyrell & O’Beirne solicitors, said her role was an administrative one, performing technical and secretarial functions. She said it did not involve the exercise of any public powers or governmental authority.

The State of Kuwait argued the role did touch on policy and governmental authority

In response, Kiwana Ennis BL for the State of Kuwait, instructed by Fitzsimons Redmond, said academic advisors in the Kuwaiti Cultural Office enjoyed a senior position and played a key role in the implementation of government policy.

The court was told the role was more than the routine performance of mere administrative tasks. The State of Kuwait argued the role did touch on policy and governmental authority and as such the diplomatic mission was entitled to invoke the doctrine of sovereign immunity.

Last year, the WRC ruled it had no jurisdiction to hear the substantive claim, once the State of Kuwait had invoked its sovereign immunity.

Ms Kanj subsequently appealed the WRC decision to the Labour Court which this week issued its determination.

Reviewed

Having reviewed relevant national and international case law, the three-member division of the Labour Court, chaired by Alan Haugh, found Ms Kanj’s role “did not involve the exercise of any public powers or governmental authority and did not touch on the business of the State of Kuwait such as to entitle it to rely on the doctrine of sovereign immunity”.

Speaking after the determination, Ms Kanj’s solicitor, Stefan O’Connor, said it “represents a significant evolution in the law of sovereign immunity”.

“The time has now passed when embassies or other diplomatic missions can dismiss employees with impunity and then hide behind arbitrary and outmoded immunities. We believe this case creates a level playing field for employees of such entities whose work is not necessarily of a diplomatic nature. It’s a sensible and modern approach to the working world for such employees,” he said.