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Judgment No. 21

Decision

THE TRIBUNAL,
Rejecting any wider or contrary conclusions,
Declares the complaint to be receivable as to form;
Declares that it is competent;
Orders the decision taken to be rescinded and declares in law that it constitutes an abuse of rights causing prejudice to the complainant;
In consequence, should the defendant not reconsider the decision taken and renew the complainant's appointment, orders the said defendant to pay to the complainant a sum equal to two years' net salary, excluding non-resident's allowance, that is to say 2,600,000 French francs, together with interest at 4 per centum from 15 February 1955;
Orders the defendant Organisation to pay to the complainant the sum of US$300 by way of participation in the costs of her defence;
PRONOUNCING on the application to intervene made by M. Henquet;
Considering that such intervention is receivable in so far as it is made by M. Henquet in his own name;
That in this instance the fact that the intervener holds an indeterminate appointment and not a fixed-term appointment does not prevent the present dispute from bearing on principles applicable to the legal position of the whole staff;
Considering that the intervener is however entitled to bring into issue solely his own interest in the case;
Considering that the intervention is founded only in so far as recognized by this judgment;
Orders the defendant Organisation to bear the expenses for which justification is provided by the intervener up to a maximum of US$40.

On the substance (A)

Extract:

"Any unmotivated decision would not be subject to the general legal review which is vested in the Tribunal, and would be liable to become arbitrary."
At issue is the non-renewal of a fixed-term contract.

Keywords

complaint allowed; duty to substantiate decision; grounds; decision quashed; contract; fixed-term; non-renewal of contract; judicial review

Consideration (L)

Extract:

Vide Judgment 22, consideration (l).

Reference(s)

ILOAT Judgment(s): 22

Keywords

international civil servant; member state; contract; fixed-term; non-renewal of contract; conduct; judicial review

Consideration on prejudice

Extract:

"An official who combines all the necessary qualities has a legitimate expectancy of being offered a new appointment in the position which he occupied [...]. Not only is such an almost absolute quod plerumque fit but also [...] in thus acting the administration has as its objective to create a permanent body of officials experienced in their duties, who are destined to follow a career in the organisation".

Keywords

career; legitimate expectation; satisfactory service; contract; fixed-term; non-renewal of contract; fitness for international civil service

Conderation on the substance (D)

Extract:

"It is undoubtedly true that if the Director-General has been informed that a member of his staff has acted in a manner prohibited by [...] the Staff Regulations, the Director-General has a duty to check the accuracy of such information either himself or through persons appointed by him from within his organisation, in order that he may take decisions or even sanctions, if necessary, in the full knowledge of the facts."

Keywords

complainant; inquiry; organisation's duties; misconduct; conduct; disciplinary measure

Consideration (F)

Extract:

Vide Judgment 24, consideration (m).

Reference(s)

ILOAT Judgment(s): 24

Keywords

staff member's interest; staff member's duties; organisation's interest

Consideration (B)

Extract:

Vide Judgment 24, consideration (h).

Reference(s)

ILOAT Judgment(s): 24

Keywords

staff member's duties; duty of discretion; freedom of conscience; political activity; organisation's interest

Consideration on the substance (E)

Extract:

A circular provides for renewal if, in particular, the services of the person concerned are needed. "This expression cannot mean that the person concerned must be irreplaceable, in that no successor can be found; [...] it means only that the requirements of the service [...] must be permanent and that the said person must give full satisfaction therein and otherwise in all manner in the performance of his duties".

Keywords

interpretation; work appraisal; contract; fixed-term; non-renewal of contract; organisation's interest

Consideration (L)

Extract:

"The Director-General of an international organisation cannot associate himself with the execution of the policy of the government authorities of any State member without disregarding the obligations imposed on all international officials without distinction and, in consequence, without misusing the authority which has been conferred on him solely for the purpose of directing that organisation towards the achievement of its own, exclusively international objectives."

Keywords

international civil servant; independence; member state; executive head; misuse of authority

Consideration on the substance (E)

Extract:

"The Tribunal does not have the power to order reinstatement, which requires a positive act of the Director-General, over whom the Tribunal has no hierarchical authority [...]. The Tribunal is nonetheless competent to order equitable reparation of the damage suffered by the complainant by reason of the measure of which she was the object."

Keywords

competence of tribunal; reinstatement; termination; material damages

Consideration on receivability

Extract:

"Whereas the complaint was not submitted within the period of time of 90 days provided in the Regulations running from the date on which the decision impugned was taken [...], such was due to the transfer of the complainant to hospital [...] the complainant could only take cognizance of this decision at the conclusion of her hospitalization [...]. She brought her complaint in due form within ninety days from that date [...]. The organization does not [...] plead non-receivability following the late notification of the complaint; the delay is clearly due to vis major".

Keywords

complaint; receivability of the complaint; time limit; exception; time bar; force majeure; health reasons



 
Last updated: 15.09.2017 ^ top