X v United States of America

Date16 février 1995
CourtLabour Court (Switzerland)
Switzerland, Labour Court (TPH) of Geneva.
United States of America

State immunity Jurisdictional immunity Locally recruited telephonist/receptionist employed by mission of foreign State Contract of employment Claim for unlawful 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 violate sovereignty of foreign State Whether courts entitled to exercise jurisdiction over claim relating to purely financial consequences of dismissal Effect of default of appearance by foreign State Scope of right of appeal The law of Switzerland

Summary:The facts:X was employed from 1973 onwards by the United States in Geneva as a telephonist/receptionist. She worked successively for its mission to the United Nations, its GATT Delegation and finally the consular section of its Permanent Mission. Following her dismissal, X instituted proceedings before the Labour Court of Geneva claiming unpaid overtime and compensation for unlawful dismissal. The United States did not enter an appearance. 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 and to give judgment in default.

(1) According to the settled jurisprudence of the Swiss Federal Tribunal, jurisdictional immunity could not be relied upon by a foreign State in proceedings brought against it by a locally recruited member of the administrative, technical or service staff of its mission. Such employees did not perform an activity closely linked to the exercise of the sovereignty of the employer State. The plaintiff in this case was a consular employee, did not form part of the career consular staff and had no power of decision.

(2) The law applicable to an employment relationship between a sending State and a locally recruited employee was the law of the receiving State. Where, as here, the sending State failed to enter an appearance, it was for the court to establish that the case was prima facie well founded. This presented no problem in relation to the claim for overtime pay since the Consulate General of the defendant State had admitted that the plaintiff frequently worked overtime and had not contested the hours claimed.

(3) So far as the claim for compensation for wrongful dismissal was concerned, this was inadmissible from the standpoint of public international law since Swiss law required a detailed examination of the reasons for dismissal. A decision to dismiss such an employee constituted an act of State (acte de gouvernement) and was therefore not subject to the jurisdiction and sanction of the forum State. It was not for the authorities of the receiving State to examine the justification or reasons for dismissal from a diplomatic or consular post, or to require the employer State to justify its action. The principle ne impediatur legatio would oppose such a course.

(4) On the other hand, the courts of the forum State did have full jurisdiction to examine the financial consequences of a summary dismissal. Where the employer State refused to notify possible just cause it would be ordered to pay salary in lieu of notice pursuant to Swiss law. Equally, the courts of the forum State had jurisdiction over any financial claim which did not require an intrusion into the internal life of a diplomatic or consular mission or an examination of its staff policy.

(5) Where a judgment was rendered in default of appearance against a foreign State, the Court was entitled to give a longer time limit for lodging an appeal against the judgment than normally applicable. In this case, the defendant State was to be given a period of seventy days as the time limit for lodging an appeal, taking account of the time limits laid down in Article 16(4) of the European Convention on State Immunity, 1972, and Article 21(1)(b) of the Draft Convention of the International Law Commission on the Jurisdictional Immunities of States and their Property, 1991.

The text of the judgment of the Court commences on the following page.

The facts

X was engaged in Geneva from 1 June 1973 for an unlimited period, as telephonist/receptionist, by the Permanent Mission of the United States to the European Office of the United Nations in Geneva. From 1974 to 1979 X worked at the United States Delegation to the Multilateral Trade Negotiations. In 1980 X was appointed Consular Assistant in the consular section of the United States Permanent Mission in Geneva.

From the grounds of the judgment
1. Section 33(1) LJP provides:

2. Where the defendant State does not appear at a hearing, the court cannot give a ruling on the merits without first examining ex officio whether the summons was properly served, whether it has competence ratione materiae and whether it has jurisdiction

3. In this case the Court considers that, taking account of the circumstances, the absence of the defendant State at the hearing is unjustified for several reasons.

4. In fact, the defendant...

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