Franois v Canada

Date23 mai 1989
CourtLabour Court (Belgium)
Belgium, Labour Court of Brussels (First Chamber).

(Dekeyser, Vice-President)

State of Canada

State immunity Jurisdictional immunity Employee of cultural and information centre of foreign State Contract of employment Dismissal Claim for damages in lieu of notice Whether foreign State entitled to jurisdictional immunity Whether contract of employment concluded jure imperii or jure gestionis Proper method of service of writ on a foreign State The law of Belgium

Summary: The facts:The plaintiff was employed as a technician at the Cultural and Information Centre of the Canadian Embassy in Brussels from 1978 to 1986. Following his dismissal he claimed that the indemnity offered to him in lieu of notice, in accordance with the provisions of Belgian law, was inadequate. Canada invoked jurisdictional immunity.

Held:Jurisdictional immunity was denied and the claim was allowed in part.

(1) The defendant State had acted jure gestionis in concluding the contract of employment with the plaintiff. It was significant in this regard that, in terminating the contract, the defendant State had allocated an indemnity in lieu of notice, making express reference to Belgian law.

(2) In accordance with the Belgian Judicial Code, service abroad on a foreign State was accomplished by the handing over of the writ to the postal services in the State of the forum, for delivery by registered post, with a receipt being issued.

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

The purpose of these proceedings is to obtain judgment against the defendant for payment of the sum of 191,175 Belgian francs as compensation in lieu of notice with interest and costs.

The facts

The claimant entered into the service of the defendant on 1 October 1978 as a technician at the Cultural and Information Centre of the Embassy of Canada in Brussels, under a letter of engagement of 1 August 1978.

By a letter of 19 June 1986, his contract was terminated with effect from 30 June 1986 subject to the payment of an indemnity in lieu of notice of nine months' salary. On 26 June 1986, counsel for the claimant asked for an additional three months' salary.

Lack of jurisdiction

The defendant raises the lack of jurisdiction of the Court in application of the principle of the jurisdictional immunity of States.

The defendant State is entitled in principle to jurisdictional immunity, but such immunity is not absolute. A distinction must be made between acts performed within the framework of public power...

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