A FORMER porter at the Spanish cultural institute in Dublin has been denied the right to take a case of constructive dismissal to the Employment Appeals Tribunal because his former employer has claimed diplomatic immunity.
The tribunal ruled by majority yesterday it would accept a letter from the Spanish ambassador Mr Fermin Zelada, stating that Instituto Cervantes was a part of the Spanish embassy and enjoys immunity.
The immunity also extends to the institute's director, Mr Javier Ordriozola. Afterwards, the plaintiff, Mr Nicholas Caffrey who worked at the institute from 1988 until last September, said: "It is that an Irish employee as no rights." Asked if he would be appealing, he replied: "It's not stopping here."
Mr Caffrey can appeal the ruling to the Circuit Court or take an action against the institute in Spain. Two years ago a former institute director, Mr Antonio Sierra, took an action against the institute in Spain and was awarded 19.8 million pesetas (£100,000) by the Juzgado de lo Social in Madrid, the Spanish equivalent of the tribunal. However, the institute appealed and the case has still to be concluded.
At yesterday's hearing Mr Ercus Stewart SC, for Instituto Cervan instructed by Mr Tom McGrath of T.P. Robinson solicitors, cited a 1991 Supreme Court decision which upheld the right of the Canadian embassy to immunity after it dismissed a chauffeur. The court ruled Ireland wash bound to recognise the embassy's immunity by Article 29.3 of the Constitution.
As well as a letter from the ambassador, Mr Stewart presented the tribunal with another from the deputy head of protocol at the Department of Foreign Affairs, Mr Joe Brennan, confirming the diplomatic status.
For the plaintiff, Mr Roddy Horan, instructed by O'Keeffe and Lynch solicitors, said the institute was a commercial arm of the Spanish state. The least the tribunal should do was call witnesses who could be cross-examined about the letters, and the institute's status.
But Mr Stewart said there was no obligation on the embassy or the institute to attend the tribunal.