{UAH} A COOL WAY TO FIRE: Text sacking case struck out as South African high commissioner

Text sacking case struck out as South African high commissioner claims diplomatic immunity

MARTY SHARPE/ FAIRFAX NZ

Patience Komla, who was sacked by the South African high commissioner on March 3 this year.

The Employment Relations Authority has thrown out a dispute lodged by an employee sacked from the South African high commission in Wellington over a text message.

Patience Komla, who had been a domestic worker at the high commissioner's residence in Roseneath for 15 years, claimed to have been unjustifiably dismissed after the text she had meant to send to a friend in Ghana went to an attache at the commission by mistake.

The text referred to high commissioner Zodwa Lallie.

MARTY SHARPE/FAIRFAX NZ

The text message sent by Patience Komla which led to her sacking by the South African High Commissioner

It read: "Hi sis how u? I help her and on our way she stop by the kitchen as usual not knowing am waiting just close by and all the things were said and the other lady said she shd have a good day and she responded thanks and that she don't have many pple in this HSE who say those things to her bcos she might have a bad smell! I was like woaw amazing u can say things like this to yr employee? Anyway hope u doing well."

Lallie – who once said in an interview that what she liked about New Zealand was its sense of fairness – summarily dismissed Komla.

GETTY IMAGES

South African high commissioner Zodwa Lallie summarily dismissed Komla.

She booked a hotel room for Komla, gave her $50, and had a driver take her away.

Lallie was named in Komla's complaint, along with the South African high commission, and claimed sovereign immunity, under which a state cannot commit a legal wrong and is immune from civil suits or criminal prosecutions.

The Republic of South Africa, represented by the commission, asked the Employment Relations Authority (ERA) to throw out the case, claiming it had no jurisdiction to hear it.

A determination dated December 14 shows Komla's case was staked on the claim that her employment relationship was commercial, rather than diplomatic.

A special exemption in the Vienna Convention on Diplomatic Relations allows allegations involving commercial disputes outside of a diplomat's official functions to be contested in the host country.

​Komla claimed her employment was a commercial agreement between herself and the high commission, and that an investigation into her dismissal posed no risk to South Africa's sovereignty.

She pointed to a line in her contract that the parties would comply with "local labour laws".

Her lawyer, David Balfour, cited previous similar cases involving cleaners and nannies overseas, arguing that her job centred on domestic help not diplomatic activities, so immunity should not apply.

Lallie's lawyer, Peter Cullen, countered that Komla's duties formed part of the daily official functions of a diplomatic household, referring to overseas cases which found "commercial" activities covered endeavours for personal profit, not daily diplomatic life.

ERA member Trish MacKinnon found Komla's duties did not fit the description of "commercial", and instead fell within the daily function of a diplomatic household, and that the commissioner was able to claim immunity from the proceedings.

She wrote that the authority had no jurisdiction to hear the employment dispute, and struck out the case, reserving a decision on costs.

The determination also showed the Ministry of Foreign Affairs and Trade (Mfat) had filed communications sent to it from the South African high commission, to the ERA.

The messages from the South African side concerned the high commissioner's status and referred to the Vienna Convention.

The determination said Komla expressed concern at Mfat's intervention. However, MacKinnon disagreed, writing that it was appropriate for the ministry to assist the ERA with the "unusual" case. 

Gwokto La'Kitgum

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