Canada v Employment Appeals Tribunal and Burke

• Jurisdiction: Ireland
• Judgment Date: 12 March 1992
• Date: 12 March 1992
• Docket Number: [1989 No. 196 J.R.]
• Court: Supreme Court

Canada v. Employment Appeals Tribunal

The Government of Canada

Applicant

and

The Employment Appeals Tribunal, Respondent and Brian Burke, Notice Party

[1989 No. 196 J.R.]

High Court

Supreme Court

International relations - Sovereignty - Immunity - Irish citizen employed in applicant's embassy as driver - Dismissal - Claim for unfair dismissal against foreign state by notice party - Claim for unfair dismissal brought before the Employment Appeals Tribunal - Jurisdiction to hear claim - Unfair Dismissals Act, 1977 (No. 10), s. 10, sub-s. 1 - Constitution of Ireland, Article 29, s. 3.

The notice party, B., was employed for almost two years as a driver with the applicant's embassy in Dublin and upon his dismissal brought a claim before the respondent Tribunal under the Unfair Dismissals Act, 1977. There the applicant's solicitor objected that the Tribunal had no jurisdiction to hear the claim since the applicant was a sovereign authority and immune from suit in a foreign court or tribunal. Upon its rejection of that submission and the applicant's withdrawal from the hearing, the Tribunal proceeded with the claim and awarded £10,200 compensation. The applicant obtained in the High Court leave to apply by way of judicial review to quash the award on the grounds that the Tribunal had acted without jurisdiction and that its order was ultra viresand unlawful; upon filing of grounds of opposition, it was

Held by MacKenzie J., in refusing the relief sought, 1, that although the doctrine of sovereign immunity may have been recognised as a rule of law in the last century, when state activity was primarily limited to law and order, foreign relations and defence, modern circumstances and in particular the much wider ambit of state activity and involvement required adjustment of the doctrine (including development of the doctrine of restricted immunity, excluding state immunity from acts of a commercial nature) with the effect that there was now neither consensus on the scope of the doctrine nor uniformity in its application.

2. That any courts or tribunals in Ireland hearing a claim such as that of the notice party were not challenging or enquiring into any act of sovereignty or of government of another state and accordingly the respondent Tribunal was justified in proceeding with the claim and awarding compensation.

On appeal from the judgment and order of the High Court, counsel for the applicant in the Supreme Court stated that his client would not seek to avoid meeting its obligations if the principle of immunity were established.

Held by the Supreme Court (Hederman, McCarthy and O'Flaherty JJ.), in allowing the appeal and quashing the determination of the Employment Appeals Tribunal, 1, that the former doctrine of absolute sovereign immunity was never conclusively established in Irish law.

Dicta of Hanna J. in Zarine v. Owners of SS. "Ramava"[1942] I.R. 148 approved;Saorstát and Continental Steamship Company v. De las Morenas[1945] I.R. 291considered; Congreso del Partido[1983] 1 A.C. 244 followed.

2. That the doctrine of sovereign state immunity was no longer a generally recognised principle of international law.

3. That whatever the original circumstances providing a rationale for the former doctrine of absolute state immunity, where the activity called into question truly touches the actual business or policy of the foreign government or state, then immunity should still be accorded to such activity.

4. That the notice party was employed under a contract of service requiring an element of trust and confidentiality and creating a bond with his employers in the Government of Canada's public business organisation and interests, but which was not a trading or commercial contract of his employers and thus the doctrine of restrictive state immunity applied.

Empire of Iran (1963) 45 I.L.R. 57 distinguished.

Per O'Flaherty J.: Once one approaches the embassy gates, one must do so on an amber light. Prima facie anything to do with the embassy is within the public domain of the government in question.

5. That the "generally recognised principles of international law" accepted by Ireland in Article 29, s. 3 of the Contitution did not contravene any constitutional rights of the notice party.

6. That notwithstanding the enforcement provisions under s. 10, sub-s. 1 of the Unfair Dismissals Act, 1977, providing for intervention by the Minister for Labour upon failure to abide by the Tribunal's determination, the applicant was not obliged to postpone seeking leave for judicial review to such enforcement steps.

Cases mentioned in this report:—

Byrne v. Ireland [1972] I.R. 241.

Congreso del Partido [1983] 1 A.C. 244; [1981] 3 W.L.R. 328; [1981] 2 All E.R. 2164.

Empire of Iran (1963) 45 I.L.R. 57.

Macauley v. Minister for Posts and Telegraphs [1966] I.R. 345.

Mexico v. Hoffman (1945) 324 U.S. 30.

Saorstát and Continental Steamship Company v. De las Morenas[1945] I.R. 291; (1944) 79 I.L.T.R. 139.

Sengupta v. India (1982) 64 I.L.R. 352.

Sultan of Johore v. Abukabar Tunku Aris Bendahar [1952] A.C. 318; [1952] 1 W.L.R. 1106; [1952] 1 All E.R. 1261.

The Cristina [1938] A.C. 485; [1938] 1 All E.R. 719; [1938] W.N. 101; (1938) 54 T.L.R. 512; 60 Lloyds Rep. 147; 159 L.T. 394.

The Schooner Exchange v. M'Faddon (1812) 7 Cranch. 116.

Zarine v. Owners of SS. "Ramava" [1942] I.R. 148.

Judicial Review.

The facts are summarised in the headnote. On the 3rd July, 1989, the applicant obtained in the High Court (Barrington J.) leave to apply by way of judicial review for an order of certiorari to quash a decision of the respondent awarding the applicant compensation for unfair dismissal. The Employment Appeals Tribunal (Peter O'Leary, chairman, Declan Winston and George Keenan) had heard the claim on the 22nd July and 17th October, 1988, and delivered its decision on the 9th January, 1989. Following filing of grounds of opposition the matter came on for full hearing before the High Court (MacKenzie J.) pursuant to originating notice of motion dated the 5th July, 1989, on the 1st and 2nd November, 1989. The judgment infra represents the stenographer's transcript adopted by MacKenzie J.

The applicant appealed to the Supreme Court from the judgment and order of the High Court. The appeal was heard on the 10th and 11th December, 1991. At the opening of the hearing the Court enquired whether the Attorney General had been notified under O. 60, r. 2 of the Rules of the Superior Courts and counsel for the Tribunal indicated that it would notify the Attorney General later in the day.

Cur. adv. vult.

MacKenzie J.

This is a case which must be approached pragmatically. Mr. Brian Burke was employed as a driver/messenger with the Canadian embassy in the city of Dublin. His employment commenced on the 3rd June, 1986, and lasted until the 16th May, 1988, when he was dismissed. He brought proceedings pursuant to the Unfair Dismissals Act, 1977, for damages for unfair dismissal before the Employment Appeals Tribunal on the 17th October, 1988. The Tribunal established pursuant to the Act heard a submission from the solicitor for the Canadian Government that the Tribunal had no jurisdiction to hear the matter, that the Canadian Government was a sovereign authority and sovereign state and therefore immune from such suit and the Tribunal had no jurisdiction to hear Mr. Burke's claim. The Tribunal rejected the submission whereupon the solicitor acting on behalf of the Canadian Government withdrew from the proceedings. The Tribunal then heard the case and assessed compensation pursuant to the Minimum Notice and Terms of Employment Act, 1973, and the Unfair Dismissals Act, 1977.

In this judicial review the respondents are said to have acted without jurisdiction over the Government of Canada, that they acted ultra viresand misdirected themselves in law. Mr. Burke argues that unless he has access to the appropriate Tribunal in this State he has no remedy in law. He is impecunious and he is unable to fund the expenses involved in pursuing an action against the Canadian Government in Canada. Since birth he was at all times domiciled and resident within the State and still is. He is an Irish citizen and he worked within the State and paid taxes and pay related social insurance and claims protection by virtue of Articles 34 and 40 of the Constitution. On behalf of the Canadian Government it is submitted here that it is a rule of international law that a sovereign state should not be impleaded in the courts of another sovereign state against its will. Each country should for itself delimit the bounds of sovereign immunity.

A century ago no sovereign state engaged in commercial activities. It kept to the traditional function of a sovereign to maintain law and order, to conduct foreign affairs and see to the defence of the country. In those days the law of absolute immunity was developed. The courts of one country did not implead a foreign sovereign, that is they would not by their process make him against his will a party to legal proceedings whether the proceedings involved process against his person or seek to recover from him specific property or damages. This principle of law seems to me a doctrine which grew up in the 19th century when in most sovereign states there was a monarch and therefore the doctrine to my mind is nowadays a fiction. The courts of every country differ in their application of...