Which employment law should apply to employees of embassies and consulates?
By Jeffrey R. Smith
Employees in Canada are fairly well-protected by labour and employment law.
Some could argue the laws don’t go far enough, while others — likely employers — would argue it’s too much. But, compared to many countries, Canadian workers have it pretty good.
The differences in labour and employment law in different countries can pose challenges to employers who operate in multiple jurisdictions, as they can have different obligations in each location. But what if the employer is actually a country’s government and the workplace is an embassy or consulate?
Geographically, the workplace would be located in a particular country. But embassies and consulates are usually considered the territory of the country it serves, though the people working there can be a mix of the embassy country and the country in which it’s located. Often, citizens of the embassy country have diplomatic immunity and the host country has no jurisdiction on the grounds of the embassy — which is why defectors and refugees seek asylum in embassies. The host country can’t touch them there.
Two years ago, the United States Consulate General in Toronto terminated the employment of a cashier who had failed to follow its policy on locking cash registers and had made a few mistakes in passport renewals. She also had a few unauthorized absences. The employee, a Canadian citizen, filed a complaint of unjust dismissal under the Canada Labour Code, but the U.S. claimed Canadian employment law had no jurisdiction in its consulate and didn’t apply to its employees. In much of the U.S., employment is “at-will,” meaning employers can fire employees at any time for any reason.
An arbitrator sided with the employee, finding the legislation that gives immunity to foreign states excludes “commercial activity.” Since the cashier was in an administrative position that didn’t have anything to do with any diplomatic function, her employment contract was a commercial activity that was subject to the Canada Labour Code. The arbitrator also noted the employee was a Canadian citizen, and Canadians in clerical or administrative positions for embassies should be protected under Canadian labour and employment law. The consulate was ordered to reinstate the employee.
Following this decision, it would seem employees working in embassies and consulates are subject to Canadian labour and employment law — at least Canadian employees are. Should it be different if the employees are the nationality of the embassy country, or another nationality altogether? Or should it depend on where the employee was hired?
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at [email protected] or visit www.employmentlawtoday.com for more information.
