A Jerusalem Court: A Court Cannot Order a Foreign State to Reinstate a Former Employee
In September of 2010, the Honorable Judge Daniel Goldberg of the Regional Labor Court in Jerusalem rendered a partial judgment in favor of the United States, represented by Carmon & Carmon.
An individual was separated from his employment at the U.S Consulate General in Jerusalem for cause. He then filed a complaint against the U.S government stating that the U.S government owed back wages, compensation for unlawful separation, and severance payment. Under Israeli law, unlawfully withholding wages and severance payment could result in a court order imposing the defendant with a 515% a year punitive interest. The circumstances of the separation laid out in the case are fairly cut and dry. The Plaintiff was hired by the US Consulate as a vehicle mechanic in 2003. As for all government jobs, he was required to disclose any previous arrests during the application and employment process. The Plaintiff said that he had none. In 2006, he was arrested by Israeli police and it came to the attention of his employer that he had lied during the application process. When presented with the information, the Plaintiff admitted to having covered up a previous arrest during the hiring process. Because of this, the Plaintiff’s security clearance was cancelled and the US Consulate terminated his employment.
The U.S filed a motion to dismiss the Complaint on several grounds. First was that it enjoyed sovereign immunity from the Plaintiff’s demand to be reinstated at his job, have the separation revoked and to be awarded punitive interest on unpaid severance payments. Second, the U.S argued that the Israeli courts had no jurisdiction in terms of the demand for reinstatement because the separation was an act of the U.S Government and was related to security concerns. Third, the U.S argued that the punitive interest is a quasi punitive sanction, and rules of customary international law state that a court cannot impose foreign sovereigns with punitive or quasi punitive sanctions.
The Plaintiff countered these arguments, saying that foreign sovereign immunity is limited to governmental acts. He stated that his employment was not a governmental act but a commercial act, from which the U.S is not immune. Regarding the punitive interest, the Plaintiff argued that “granting punitive interest is considered to be a private act from which there is no immunity or a governmental act that is immune.”
After reviewing all of the information, the Honorable Judge Goldberg rendered a partial decision that the Plaintiff did not lift the burden of proof that his employment was a private act. Also, there is a special legal system applicable to employees of posts of the U.S Government, which gives the employment a governmental aspect. “The determination of a security classification of an employee of the United States government is a quintessential governmental matter of the United States government. Therefore, the United States government is immune from the jurisdiction of a court outside the United States.” Punitive interest was denied based on the Defendant’s argument of its penal nature. The Plaintiff’s demands for revocation of his separation and punitive interest were denied.