Nicoud v United States of America

Date27 avril 1994
CourtLabour Court (Switzerland)
Switzerland, Labour Court of Geneva (TPH).
United States of America

State immunity Jurisdictional immunity Locally recruited foreign national employed as driver by mission of foreign State Contract of employment Claim for wrongful dismissal Whether foreign State entitled to jurisdictional immunity Subordinate nature of employment Whether dismissal of such an employee constituting an act of State Whether enquiry into lawfulness of dismissal would infringe sovereignty of foreign State Whether courts entitled to exercise jurisdiction over claim relating to purely financial matters The law of Switzerland

Summary: The facts:Mr Nicoud, a French national, worked from 1987 as a driver for the Permanent Mission of the United States to the United Nations in Geneva. His employment was under a one-year personal services contract, renewed from year to year until he was dismissed in 1991, with thirty days notice being given as required by the contract. The dismissal was not preceded by any disciplinary action and Nicoud instituted proceedings against the United States before the Labour Court of Geneva, claiming arrears of salary and compensation for unlawful dismissal. The United States entered an appearance and waived jurisdictional immunity. The Labour Court nevertheless examined ex officio whether it was competent to exercise jurisdiction.

Held:The Court was competent to exercise jurisdiction over the dispute.

(1) According to settled case-law, the labour courts of the receiving State had jurisdiction ratione materiae over employment disputes between locally recruited subordinate members of a diplomatic or permanent mission and the employer sending State.

(2) Contracts of employment concluded between foreign missions and locally recruited staff did not have an international character and Swiss law was therefore applicable.

(3) Swiss courts should not examine the reasons which led the sending State to terminate its relationship with a locally recruited employee of its diplomatic mission and neither should they summons the employer State to justify itself. The decision to terminate such an employment relationship was an act of State (acte de gouvernement) and was not therefore subject to the jurisdiction of the courts of the foreign State, in accordance with the rule ne impediatur legatio.

(4) On the other hand, the courts of the forum State had full jurisdiction over disputes concerning the financial consequences of a summary dismissal. A refusal by the employer State to give justifiable reasons for dismissal meant that the State should be ordered to pay salary in lieu of notice as required by Swiss law.

The following is the text of the relevant part of the judgment of the Court:

The facts

1. Joel Nicoud, a French national and holder of a C permit, was engaged in Geneva on 23 November 1987 as a driver with a Personal Services Contract, by the Permanent Mission of the United States to the United Nations in Geneva. He was assigned to the Office of the Secretary of Defence, OSD, START Delegation.

2. A former police officer, Joel Nicoud operated a chauffeur car service under the name of CD Service from 1985 to 1987. Amongst his clients was the Permanent Mission of the United States, which...

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