For
the reason that international organisations can only carry out their
functions through employees, labour disputes have been held to lie at
the core of an international organisation's immunity from suits in
local courts by former or current employees in actions arising from
employment relationships.
In
Cynthia Brzak and Nasr Ishak v The United Nations, Kofi Annan, ...
For
the reason that international organisations can only carry out their
functions through employees, labour disputes have been held to lie at
the core of an international organisation's immunity from suits in
local courts by former or current employees in actions arising from
employment relationships.
In
Cynthia Brzak and Nasr Ishak v The United Nations, Kofi Annan, Wendy
Chamberline, Ruud Lubbers, 551 F. Supp. 2d 313 (2008), the court
stated that:
“The
courts have consistently held that employment-related issues lie at
the core of an international organisation's immunity. For example,
in Mendaro v World Bank 717 F.2d 610 (D.C.Cir.1983), the D.C. Circuit
held that, notwithstanding a broad waiver in the World Bank's
founding treaty, IOIA immunity protected the Bank from a Title VII
suit by a former employee who alleged that she had been the victim of
sexual discrimination and physical and verbal sexual harassment by
her co-workers. The Court excluded employment suits from the waiver,
observing that compliance with the employment policies of over 100
Member States would be 'nearly impossible', id. at 618-19, and
noting that 'one of the most important protections granted to
international organisations is immunity from suits by employees of
the organisation in actions arising out of the employment
relationship'. Id. at 615.
See
also Broadbent v Org. of Am. States 628 F.2d 27, 35 (D.C.Cir.1980)
(holding that [the] international organisation's employment of
plaintiff could not constitute 'commercial activity' under [the]
restrictive theory of immunity); Morgan v Int'l Bank for Reconstr.
and Dev 752 F. Supp. 492, 493 (D.D.C.1990) (holding that
international organisations are immune under IOIA and international
law from suits 'arising out [of] their internal operations').
For
similar reasons, the courts have consistently found that functional
immunity applies to employment-related suits against officials of
international organisations. See, e.g., De Luca 841 F.Supp. at 536
(holding officials immune against claims that they, among other
things, initiated a retaliatory tax audit and forged plaintiff's
pay statement); Broadbent 628 F.2d at 34 ('International officials
should be as free as possible, within the mandate granted by the
member States, to perform their duties free from the peculiarities of
national politics.'); D'Cruz v Annan 2005 WL 3527153 (S.D.N.Y.
December 22, 2005) (holding that current and former U.N. officials
are immune under the General Convention and IOIA from employment
discrimination and retaliation claims).”
The
Food
and Agriculture Organisation (FAO)
has its own internal mechanisms for dealing with employment related
disputes. Article IX of the Convention on Privileges and Immunities
of Specialised Agencies of the United Nations (1991) (the Convention)
provides that:
“Section
31
Each
specialised agency shall make provision for appropriate modes of
settlement of:
Disputes
arising out of contracts or other disputes of private character to
which the specialised agency is a party.”
The
reason why these mechanisms were created was to enable the
organisation to deal with disputes arising out of contracts to which
it is a party to ensure that justice could be done to aggrieved
parties who would otherwise be without remedies due to the immunity
enjoyed by the organisation.
The
dispute between the Food
and Agriculture Organisation (FAO)
and the first respondent, arising from the termination of employment
should have been dealt with according to the mechanisms established
by the organisation in terms of the Convention on Privileges and
Immunities of Specialised Agencies of the United Nations (1991) (the
Convention) and its Constitution.
