The State of Kuwait v Nada Kanj

JurisdictionIreland
JudgeMr. Justice Barr
Judgment Date11 June 2021
Neutral Citation[2021] IEHC 395
Docket Number[Record No. 2019/271 MCA]
Year2021
CourtHigh Court
Between
The State of Kuwait
Appellant
and
Nada Kanj
Claimant

[2021] IEHC 395

[Record No. 2019/271 MCA]

THE HIGH COURT

JUDGMENT of Mr. Justice Barr delivered electronically on the 11th day of June, 2021

Introduction
1

This is an appeal on a point of law pursuant to s.10A of the Unfair Dismissals Acts 1977 – 2015, against a determination made by the Labour Court in favour of the claimant. That determination held that the appellant was not entitled to rely on the doctrine of sovereign immunity to block the claimant's claim pursuant to the Unfair Dismissals Acts.

2

The facts of the case can be briefly stated in the following way: The claimant is a citizen of both the Lebanon and Ireland. At all material times she was employed in the Kuwaiti Cultural Office in Dublin as an academic adviser. Her employment in that position commenced in 2007 and ended in 2017.

3

The claimant brought a claim under the Unfair Dismissals Acts 1977–2015 against the appellant, in which she claimed that she had been unfairly dismissed from her position as an academic adviser in the Kuwaiti Cultural Office in Dublin. The appellant raised an objection before the WRC that it did not have jurisdiction to enter onto the dispute, because the appellant was claiming sovereign immunity. The WRC held in favour of the appellant on this issue.

4

The claimant appealed that decision to the Labour Court, which, in its determination dated 22nd July, 2019, allowed the appeal and held that having regard to the provisions of customary international law, and in particular the provisions of Art. 11.2(a) of the United Nations Convention on Jurisdictional Immunities of States and their Property, 2004, the claimant was entitled to maintain her claim and the appellant was not entitled to invoke sovereign immunity.

5

In essence, Art. 11.1 provides that a state cannot invoke immunity from jurisdiction before a court of another state in proceedings which relate to a contract of employment between the state and an individual for work performed, or to be performed, in whole or in part, in the territory of that other state. Thus, it can be seen that Art. 11.1 constitutes an exception to the doctrine of sovereign immunity. However, Art. 11.2 provides a number of exceptions to that exception and in particular it provides that para. 1 of Art. 11 shall not apply if “(a) The employee has been recruited to perform particular functions in the exercise of governmental authority”.

6

The essential conflict between the parties before both the WRC and the Labour Court, was whether the claimant in her role as academic adviser in the Kuwaiti Cultural Office in Dublin could be held to have been engaging in the exercise of governmental authority on behalf of the State of Kuwait. It its determination, the Labour Court held that the claimant did not come within the provisions of Art. 11.2(a) and as a result, her case therefore fell within the provisions of Art.11.1, meaning that the appellant was not entitled to raise the doctrine of sovereign immunity against her claim.

7

The appellant appeals against the determination of the Labour Court on a number of grounds, including: That the Labour Court failed to engage with the evidence that had been led before it and had failed to give reasons for the conclusion that it had reached at the end of its determination; that the Labour Court had applied the wrong test and in particular, they had looked for extra factors, other than those specified in Art. 11.2(a). The arguments raised on behalf of the appellant will be set out in more detail later in the judgment.

8

In response, it was submitted on behalf of the claimant that the court's role was limited on an appeal on a point of law; the court was not entitled to assess the correctness of the decision reached by the Labour Court, but was confined to assessing its lawfulness.

9

It was submitted that when one looked at the decision as a whole, it was a comprehensive decision wherein all the relevant evidence and the law had been summarised in depth and in these circumstances, it could not be said that the reasons for the decision were unknown, notwithstanding that the decision portion of the determination itself was somewhat brief.

10

It was further submitted that the Labour Court had had regard to relevant Irish case law and in particular, to a relevant decision of the Supreme Court in 1998 and had also had regard to subsequent developments in the area, by reviewing the 2004 Convention and case law from the European Court of Human Rights and the Court of Justice of the European Union. It was submitted that, taken as a whole, the Labour Court decision was unimpeachable.

11

Having regard to the primary ground put forward on behalf of the appellant; that the Labour Court had failed to properly engage with the evidence put before it and had failed to resolve the conflicts in that evidence and had failed to give any or any adequate reasons for the conclusion that it had reached, it is necessary to give a brief summary of the evidence that was before the Labour Court.

The Appellant's Evidence before the Labour Court
12

The Labour Court heard evidence in the appeal over three days on 28th November, 2018 and on 12th and 13th February, 2019. The court heard from five witnesses, three on behalf of the appellant. On the other side, it heard from the claimant and from a former colleague of hers. The essential conflict which the Labour Court had to resolve was whether the claimant in her role as academic adviser, was acting at a level of sufficient seniority and responsibility that she could be said to be exercising governmental authority on behalf of the State of Kuwait; or whether, as put forward by the claimant, she was merely carrying out largely administrative and clerical functions in relation to the disbursement of scholarship funds to Kuwaiti students studying in Ireland.

13

On behalf of the appellant, evidence was given by Mr. Mostafa Farghali, an academic adviser in the appellant's cultural office in Dublin since August 2013. He stated that as an academic adviser, the person would be a member of the Academic Committee, which was formally invested with powers by the Kuwaiti Ministry of Higher Education to make certain decisions in relation to Kuwaiti students in Ireland, such as whether to freeze or extend a student's scholarship. In relation to other matters, such as the qualifying criteria for scholarships, the committee merely made recommendations to the relevant ministry, which would then decide whether or not it would accept the recommendation.

14

In cross-examination, counsel for the claimant put it to the witness that neither of her employment contracts made any reference to her being a member of the Academic Committee. Counsel put it to the witness that an advertisement of July 2018, for the post of academic adviser in the Kuwaiti Cultural Office in the UK, which listed the duties of the position, made no reference to the successful candidate being a member of an Academic Committee. Counsel further put it to the witness that no meeting of the Academic Committee had taken place in the period 2014 – 2016, when Dr. Messi had been the Head of Office. The witness stated that the committee had only met occasionally during that period to discuss certain specific issues. When asked in cross-examination whether the witness believed the power to make decisions lay with the Cultural Office, or with the Head of Office or with the Academic Committee, the witness confirmed that all written communications from the Cultural Office to the Ministry where signed by the Head of Office. Likewise, communications from the Ministry to the Cultural Office were addressed to the Head of Office.

15

When asked to give a breakdown of an academic adviser's workload, Mr. Farghali stated that typically 50% was paperwork in the office; 40% was preparation for and attendance at the Academic Committee and 10% was liaising with students.

16

Evidence was given by Mr. Abdullah Al Naimi, who was also an academic adviser in the Cultural Office. He had held that position since May 2010. He stated that there were five principal aspects to the role of an academic adviser: participation in the work of the Academic Committee; organising the payment of students' fees to academic institutions and the payment of allowances to students; maintaining data in relation to students' academic progression on the principal database; the production of documentation required by students, such as letters confirming the fact that they are being sponsored by the State of Kuwait; and direct engagement with academic institutions.

17

In relation to the Academic Committee, Mr. Al Naimi referred to Decree No. 52 promulgated by the Kuwaiti Deputy Minister of Higher Education on 12th April, 2012, which delegated power to local academic committees to make decisions and grant approval in relation to a number of matters affecting students, such as change of major subject; change of institution; sufficient progression to merit payment of scholarship; approval for workplace training; approval for participation in online courses, etc. A translation of the decree was submitted in evidence. According to the witness, the decision of the Academic Committee with regard to any of the foregoing matters in relation to any student had “ legal, political and financial implications”.

18

The witness stated that the key responsibility for ensuring that all payments made to and on behalf of students by the Cultural Office were in order and correct, rested with the academic adviser. He stated that the State of Kuwait was constantly looking for new ways to collaborate with Irish education and research institutions, that could deliver educational programmes that met Kuwait's requirements.

19

In cross-examination, the witness stated that in his opinion, participation in the work of the Academic...

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2 cases
  • ADJ-00037216 - Workplace Relations Commission Abdul Rafiq v State Of Kuwait
    • Ireland
    • Workplace Relations Commission
    • 8 de janeiro de 2024
    ...rather because of how the Court concluded that the complainant did not exercise governmental authority. In the State of Kuwait v Kanj, 2021] IEHC 395 Barr J held that“The Labour Court was entitled to come to a conclusion that it preferred one set of evidence to the other; but it was obliged......
  • Onyemekeihia v The Minister for Justice and Equality
    • Ireland
    • High Court
    • 8 de dezembro de 2023
    ...and in that regard, she was satisfied that the principles of curial deference did not arise; as occurred in The State of Kuwait v Kanj [2021] IEHC 395, it was effectively a bald conclusion without an expression of why the conclusion was reached or without engaging in the conflicting evidenc......

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