Claims of a foreign domestic employee engaged by a foreign State for the service of the head of a Permanent Mission

Facts

This case concerns a foreign domestic employee engaged by the Republic of Chile to work at the private residence of the Chilean Ambassador in Geneva. To obtain the authorization to work in Switzerland, the Chilean State provided a guarantee declaration to the Swiss authorities, committing to respect the applicable salary and working conditions for a domestic worker in Geneva.

The domestic employee brought a claim before the Swiss civil courts to assert her claims regarding salary and holidays, based on Art. 342 para. 2 CO which allows a party to an employment contract to take civil action to obtain the performance of a public law obligation imposed on the other contracting party.

Considerations

The Federal Tribunal considered that, by signing the guarantee declaration, the Chilean State had committed itself to the Swiss authorities to respect the applicable salary and working conditions in Geneva. This public law obligation can be invoked by the domestic employee before the civil court under Art. 342 para. 2 CO.

Although the parties had agreed on a choice of Chilean law, the Federal Tribunal ruled that Art. 342 para. 2 CO, as well as the mandatory…