The High Court will decide later whether to overturn a Labour Court decision which allows a woman working in the cultural office of the Kuwaiti Embassy in Dublin to take an unfair dismissal case.
The Labour Court in 2019 found Nada Kanj, is a dual Irish/Lebanese citizen who worked for ten years as an academic advisor in the State of Kuwait's Cultural Office, was not precluded from availing of our employment protection laws by virtue of diplomatic immunity.
Mr Kanj had argued her role, related to Kuwaiti students attending third level institutions here, was purely administrative.
The State of Kuwait argued her work meant she played a key role in the implementation of government policy.
She says in 2017 her employment was terminated without any reasons given. She brought an unfair dismissal claim to the Workplace Relations Commission (WRC)
The WRC decided it could not deal with her case on the basis it had no jurisdiction because the Kuwait cultural office had diplomatic immunity from Irish employment law.
She appealed and the Labour Court reversed that decision saying her unfair dismissal case could be heard here.
Kuwait then asked the High Court to overturn that and on Wednesday Mr Justice Robert Barr reserved his decision.
Eanna Mulloy SC, for the State of Kuwait, in his submissions to the court, said the Labour Court had erred in law in finding her role did not involve the exercise of any public powers or governmental authority and therefore was not covered by diplomatic immunity.
The Labour Court had applied the wrong test in relation to the issue of public powers/governmental authority.
It has also set a new threshold in relation to this issue which had been determined in a 1992 Supreme Court case involving the Canadian Embassy and one of its employees in which the test for diplomatic immunity was established.
There was no such power in Irish or international law allowing for this and the Labour Court had for the first time "thrown down the gauntlet and gone on a solo run", counsel said. It had also omitted a lot of the necessary reasoning process for coming to its decision, he said.
Survey of law
Michael Lynn SC, for Ms Kanj, said the Labour Court had not erred. He argued its decision was quite clear, it had summarised the evidence and carried out a quite comprehensive survey of the law before it came to its decision.
Fundamental to that was that her case came within the threshold required by a UN convention relating to this issue on diplomatic immunity.
Article 11 2a of the 2004 UN Convention on Jurisdictional Immunities of States and Their Property says that, unless otherwise agreed by the states concerned, the state cannot invoke immunity in relation to a contract of employment unless certain conditions are met including functions in the exercise of governmental authority.
His client met that criteria and the Labour Court decision should stand.