ADJ-00037216 - Workplace Relations Commission Abdul Rafiq v State Of Kuwait

• Jurisdiction: Ireland
• Court: Workplace Relations Commission
• Judgment Date: 08 January 2024
• Docket Number: ADJ-00037216
• Hearing Date: 17 October 2022
• Year: 2024
• Respondent: State Of Kuwait

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00037216

Parties:

	Complainant	Respondent
Parties	Abdul Rafiq	State Of Kuwait

Representatives Mr. Eoin O’Connor, B.L., instructed by Bowman McCabe Solicitors Ms. Kiwana Ennis, B.L., instructed by Fitzsimons Redmond Solicitors

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00048483-001	04/02/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00048483-002	04/02/2022

Date of Adjudication Hearing: 17/10/2022

Workplace Relations Commission Adjudication Officer: Maire Mulcahy

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following 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 changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021 were notified to the parties who proceeded in the knowledge that hearings are to be conducted in public, decisions issuing from the WRC will disclose the parties’ identities and sworn evidence may be required.

Oral evidence was presented by both the complainant, and by the respondent’s two witnesses under affirmation. The parties were offered the opportunity to cross examine on the evidence submitted.

The complainant was represented by Mr. Eoin O’Connor, B.L., instructed by Bowman McCabe Solicitors.

The respondent was represented by Ms. Kiwana Ennis, B.L., instructed by Fitzsimons Redmond Solicitors.

The respondent HR Officer and the Academic Advisor gave evidence under affirmation.

Mrs. Fozia Rafiq, the wife of the complainant gave evidence under affirmation.

Background:

The complainant has submitted a complaint that he was unfairly dismissed on 10/9/2021, and a further complaint that the respondent made an unlawful deduction of €10,350 from his wages on 10/9/2021. The complainant commenced employment as a driver with the respondent on 16/8/2008. He earned €828 gross per week.

Preliminary issues Summary of Respondent’s Case:

Preliminary issue 1. Incorrectly Impleaded respondent. The respondent submits that the correct name of the respondent is The State of Kuwait. The respondent is a sovereign nation with a diplomatic mission in Ireland known as the Embassy of Kuwait and Kuwait Cultural Office, a deputation of the Embassy of the State of Kuwait, located in London Preliminary point 2. Sovereign immunity. The respondent is invoking sovereign immunity in relation to the complainant’s claims. The respondent is a sovereign nation. The diplomatic mission in Dublin is recognised by the Irish State. It is the respondent’s position that the WRC does not have jurisdiction to hear this matter. The State of Kuwait’s diplomatic mission in Ireland is overseen by the Head of Mission, currently Prof. Fahimah Al-Awadhi. The main function of the mission is to provide financial and administrative support to Kuwaiti students in Irish educational institutions in order to implement Kuwait’s governmental policy of encouraging the education of Kuwaiti citizens in Irish educational institutions. The payments made on behalf of and to the Kuwaiti citizens include university fees, maintenance allowances for the students and their families, insurance for the students and families and flights. The complainant commenced employment with the respondent as a driver on 16th August 2008 Clause 6 of his contract provided: “Any dispute which may arise between the parties as to the implementations or interpretations of the contract shall be subject to the generally acknowledged principles of international law.” Outline of the Law on Sovereign Immunity The respondent refers to the constitutional recognition of sovereign immunity found in Article 29. 3 of Bunreacht na hEireann. It states: “Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States”. The respondent points to the Vienna Convention on Consular Relations 1963 which generated the Diplomatic Relations Immunity Act 1967 in this jurisdiction and in respect to immunity, provides as per Article 43(1) that “Consular offices and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities or the receiving State in respect to acts performed in the exercise of consular functions”.

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