Consulate claimed Canadian employment law didn't apply
This instalment of You Make the Call features a Canadian employee of a U.S. consulate who was fired.
Nadia Zakhary was a cashier at the Consulate General of the United States of America in Toronto. Zakhary, a native of Egypt, began working for the U.S. in its Agency for International Development in Cairo in 1983, where she worked for 13 years. She immigrated to Canada in 1996, became a Canadian citizen, and began working at the U.S. consulate in 1998. As a cashier, she greeted and helped U.S. citizens who came to the consulate to obtain or renew passports, report the birth of a child in Canada, or register themselves.
On July 29, 2010, the consulate claimed Zakhary left her cash register unlocked while she went upstairs to get change. There was $150 in the register, but nothing went missing during her absence. Zakhary admitted she left the register, but not for very long. However, she ignored an order to stop cashiering duties for the day. She also made two mistakes in transactions that required the consulate to give refunds. Zakhary apologized to her manager, though her regular supervisor was absent.
The consulate considered these incidents and also looked at the fact Zakhary had received a written reprimand in March 2009 for leaving a safe unlocked. She had also been counselled in June 2010 over eight sick days she had taken before or after a weekend and had been absent without authorization in March 2008. It decided to terminate Zakhary’s employment on Aug. 3, 2010, with no pay in lieu of notice.
Zakhary filed a complaint of unjust dismissal under the Canada Labour Code, claiming her misconduct was not serious enough to warrant dismissal of such a long-term employee. The U.S. argued Canadian labour law did not apply to its employees and the Canada Labour Code had no jurisdiction in its consulate.
You Make the Call
Was Zakhary subject to Canadian labour law and unjustly dismissed?
OR
Did the U.S. have immunity as a foreign state operating its consulate?
If you said the U.S. was not immune to Canadian labour laws and Zakhary was unjustly dismissed, you’re right. The labour adjudicator noted that Canada’s State Immunity Act stated that “proceedings that relate to any commercial activity of the foreign state” constituted an exception to state immunity. Zakhary was under “an individual contract of employment in a purely administrative position” that wasn’t related to anything diplomatic that would lead to diplmatic immunity. An individual contract of employment should be viewed as a commercial activity, said the adjudicator.
The adjudicator found the U.S.’s belief that employees of its embassy and consulates may fall under U.S. employment laws rather than Canadian ones was problematic, because “it suggests Canadians working in Canada in a clerical or administrative capacity at a foreign country’s embassy or consulate do not have the protection of Canadian law in their employment relationship.” The adjudicator felt this should not be the case and determined the Canada Labour Code applied to Zakhary’s employment relationship with the U.S. consulate.
The arbitrator also found the allegations of misconduct by the consulate were not serious enough to warrant dismissal, particularly for someone who had been recognized as a good employee for more than 25 years. In addition, he noted that her regular supervisor — who might have been more aware of her pattern of performance — was absent on the day of her errors. Since there was no record of Zakhary making any previous errors or leaving the register open, the adjudicator found there should have been progressive discipline to deal with that misconduct, rather than going right to dismissal.
