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State of Kuwait to appeal Labour Court ruling quashing its immunity from Irish employment law

A ruling last month found that an employee of the State of Kuwait could take a case under Irish law.

The Four Courts in Dublin
The Four Courts in Dublin
Image: Leah Farrell/RollingNews.ie

THE STATE OF Kuwait will appeal a recent Labour Court ruling which quashed the claim of its embassy to diplomatic immunity from Irish laws relating to workers’ rights.

In a decision in July, the Labour Court ruled that Kuwaiti Cultural Office employee Nada Kanj could bring a case against her employer under the Unfair Dismissals Act.

That decision followed a Workplace Relations Commission ruling last year, when the commission said it had no jurisdiction to rule in the case because it found that the office had diplomatic immunity from Irish employment law.

Kanj successfully appealed that case to the Labour Court, and papers filed in the High Court earlier this week show that the State Of Kuwait is itself appealing that higher determination.

Kanj, a dual citizen of the Lebanon and Ireland who is fluent in Arabic and English, brought a case to the Workplace Relations Commission following the termination of her employment in the Kuwaiti Cultural Office in Dublin in 2017.

Kuwait operates cultural offices in countries around the world to establish and maintain links between educational and research institutions there and in the countries where the offices are located.

Administrative role

According to evidence given to the Labour Court last month, the State of Kuwait funds approximately 500 students attending third level institutions in Ireland at a cost of over €50m a year.

Its Dublin cultural office helps students acquire Garda clearance and open Irish bank accounts, as well as paying student fees and allowances.

Kanj told the court that her role during her employment was an administrative one, and that it did not involve the use of any public powers or governmental authority and did not touch on the business of the State of Kuwait.

She told the Labour Court that 95% of her role involved paperwork and inputting data, with the remainder involving making contact with individual students and attending graduation and conferring ceremonies.

In response, counsel for the State of Kuwait told the court that Kanj’s role was performed in the context of the Kuwaiti Government’s overall approach to third level education.

Counsel for the State of Kuwait said that her role related to considerable investment by her client, and that Kanj’s position as an academic advisor played a key role in the implementation of government policy.

After reviewing the evidence, the Labour Court’s deputy chairman Alan Haugh found that Kanj’s role did not involve the exercise of any public powers or governmental authority.

Haugh said Kanj’s position as an academic advisor did not touch on the business of the State of Kuwait in a way that entitled it to rely on diplomatic immunity.

Referring to the United Nations Convention on Jurisdictional Immunities of States and their Property 2004, he also said that it had not been established that Kanj was “recruited to perform particular functions in the exercise of governmental authority”.

The Court therefore found that the State of Kuwait was not entitled to rely on the principle of diplomatic immunity to prevent Kanj taking a case under the Unfair Dismissals Act.

The State of Kuwait’s appeal of the ruling is listed for mention on 4 November.

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