The Industrial Court has affirmed that diplomatic organisations in Uganda enjoy diplomatic immunity from the jurisdictional process of the Court. Labour disputes against diplomatic organisations cannot therefore be brought before the Industrial Court. The Industrial Court affirmed this position in its ruling in David Duli v. Worldwide Fund for Nature International, Labour Dispute Reference No. 116 of 2023 delivered on 12 July 2024.
The ruling was in respect of a preliminary objection raised by Worldwide Fund for Nature (WWF / Respondent) against a claim filed by a former employee alleging that he had been unlawfully and unfairly dismissed from employment.
WWF objected to the Claim and asserted that as a prescribed organisation under the Diplomatic Privileges (Extension to Prescribed Organisations) (Amendment) (No. 3) Regulations 2014, it enjoyed diplomatic immunity from the jurisdictional process of the Industrial Court in relation to labour disputes challenging dismissal of its employees. The Court agreed.
This decision builds on the jurisprudence of the Court established in the cases of Samuel Nabulere v International Organisation for Migration [2023] UGIC 65 and Clet Wandui v Association for Strengthening Agriculture in Eastern and Central Africa (ASARECA) [2016] UGCommC 2010 to buttress the principle that labour disputes cannot be commenced before any Labour Office or Court of Law in Uganda against diplomatic entities.
Background
The Claimant was employed as Country Director by the Respondent, a prescribed organization under the Diplomatic Privileges (Extension to Prescribed Organizations) (Amendment) (No. 3) Regulations, SI No. 103 of 2014. On 16 September 2022, he was summarily dismissed for gross misconduct following a disciplinary hearing over the unauthorized use of a company credit card for personal expenses and inappropriate home office purchase at his residence during the COVID-19 lockdown.
Following his dismissal, the Claimant lodged a complaint with the Labour Office alleging that he had been unlawfully dismissed by the Respondent. At the Labour Office, the Respondent objected to the jurisdiction of the Labour Officer and asserted that they were immune from the jurisdiction of the Labour Officer. The claim was subsequently referred to the Industrial Court on a point of law.
Arguments
At the Industrial Court, the Respondent argued that the Claimant’s case was barred by virtue of its immunity from the civil and administrative jurisdiction of the courts of Uganda conferred upon it by the Diplomatic Privileges Act, Cap. 201 (now Cap.185) and the Diplomatic Privileges (Extension to Prescribed Organisations) (Amendment) (No. 3) Regulations, Statutory Instrument No. 103 of 2014 which listed it as a prescribed organisation. The Respondent further argued that the decision to discipline, dismiss or terminate an employee is within its official functions and thus beyond the host country’s courts’ jurisdiction.
The Claimant on the other hand argued that that the diplomatic immunity in the Host Agreement did not extend to the Respondent as an organization but was only conferred on its officials. The Claimant further asserted that diplomatic immunity did not extend to employment disputes since this would deprive an employee of his or her right to seek legal redress in case of a violation of a right conferred by municipal law – in this case, the right to a fair hearing before dismissal.
Decision
Diplomatic immunity is not limited to the organization’s agents, it extends to the organization
Recalling its decision in Samuel Nabulere v. International Organization for Migration (IMO) [2023] UGIC 65, the Court noted that a two-part test applies in determining whether an organization enjoys diplomatic immunity: (i) the organization in question must be a prescribed organization; and (ii) court must review the host agreement to confirm that the immunity is a function of the organization’s constituent documents.
On the first part of the test, the Court observed that Rule 2 of the Diplomatic Privileges (Extension of Prescribed Organizations) Regulations, S.I. 201-1, extends to prescribed organizations the same immunities and privileges afforded to diplomatic agents under the Diplomatic Privileges Act (the Act). That since the Respondent was listed as a prescribed organization under the schedule, it enjoys the immunities conferred by the Vienna Convention on Diplomatic Relations, 1961 (VCDR), as domesticated by the Act and extended by section 2 of the Act.
On the second part of the test, regarding the Host Agreement, the Court emphasized the need to consider its provisions. Upon review, the Court noted that Article 19(1)(a) of the Agreement granted officials of the Respondent immunity for words spoken, written, and all acts performed in their official capacity. The Court held that the dismissal letter was written in the Respondent's official capacity and therefore the Claimant's dismissal constituted an official act carried out in furtherance of the Respondent's objectives and activities.
Diplomatic immunity extends to Employment Disputes
The Court held that it lacked jurisdiction to hear the employment dispute due to the Respondent’s diplomatic immunity. The Court drew a distinction between official functions and the commercial activities of a diplomatic organisation. Applying the interpretive rule in Article 31(1) of the Vienna Convention on the Law of Treaties 1969, the court found that even employing a domestic worker does not, by itself, constitute a “commercial activity” within the meaning of the exception. Instead, the context and purpose of the provision must be considered. In this case, the Claimant was a professional employee. The Court ultimately rejected the Claimant’s argument that employment disputes fall within the exception to diplomatic immunity.
The Court further held that employment disputes are not personal or commercial transactions which fall outside the scope of immunity conferred on diplomatic entities. Labour disputes remain within the functional scope of an organization’s purpose and are therefore protected from legal action.
Rejecting the Claimant’s argument that diplomatic immunity does not extend to labour disputes, the Court emphasized the need for consistent interpretation of the Convention and its immunities. Domestic courts should not deviate from the Convention’s natural meaning unless such deviation reflects the intentions of other participating states and are widely accepted. The Court found no compelling reason to depart from the established interpretation on diplomatic immunity.
Consequently, having determined that the Respondent, as a prescribed organization, enjoys diplomatic immunity, the court dismissed the labour dispute.
Conclusion
The Industrial Court’s decision in David Duli v. WWF marks a significant clarification on the scope of diplomatic immunity in the context of employment disputes. The Court’s ruling buttresses the principle that labour disputes cannot be commenced before any Labour Office or Court of Law in Uganda against diplomatic entities.
Under most host agreements, employers who enjoy immunity from the judicial and administrative process of the law are required to set up alternative mechanisms to ensure access to justice for employees who are aggrieved by administrative decisions relating to their employment. This serves the purpose of preserving the immunity of the organisation while simultaneously protecting the fairness and legality of administrative decisions against employees in the organization.
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