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Judgment No. 3141

Decision

1. The decision of the Director-General of WHO of 7 April 2010 and the decision terminating the complainant's appointment of 3 January 2008 are set aside.
2. WHO shall grant the complainant a temporary six-month appointment in accordance with the terms and conditions indicated under 53.
3. Provided that the complainant regularises his stay in Switzerland beforehand, the Organization shall ask the Permanent Mission of Switzerland to the United Nations Office and other international organizations in Geneva to issue him with a legitimation card.
4. The Organization shall pay the complainant costs in the amount of 5,000 Swiss francs.
5. All other claims are dismissed.

Judgment keywords

Keywords

non-renewal of contract; host state; swiss legitimation card

Consideration 14

Extract:

[T]he complainant has asked that a suspensory effect be conferred upon his complaint as protection against possible expulsion by the Swiss authorities. However, the wording of Article VII, paragraph 4, of the Statute of the Tribunal specifies that “[t]he filing of a complaint shall not involve suspension of the execution of the decision impugned” and no other provision of the Statute authorises the Tribunal to order such suspension. This claim is therefore irreceivable (see Judgment 1584, under 6).

Reference(s)

ILOAT Judgment(s): 1584

Keywords

order of suspension

Consideration 15

Extract:

The complainant has requested the convening of a hearing and, in particular, the hearing of witnesses. In view of the abundant and sufficiently clear submissions and evidence produced by the parties, the Tribunal considers that it is fully informed about the case and does not therefore deem it necessary to grant this request.

Keywords

oral proceedings

Consideration 21

Extract:

However, such anomalies cannot prevent a decision from being challenged, because international organisations would otherwise be able to avoid any appeal against a decision by not adopting it in writing, or by not notifying it in the prescribed manner, which would have harmful effects. Furthermore, the case law of the Tribunal has it that an administrative decision may take any form and that, even if it is not put in writing, its existence may be inferred from a factual context demonstrating that it was indeed taken by an officer of the organisation (see, in particular, Judgments 2573, under 8, or 2629, under 6). It is well established that any act by an officer of an organisation which has a legal effect constitutes a challengeable decision (see, for example, Judgments 532, under 3, and 1674, under 6(a), or the aforementioned Judgment 2573, under 10).

Reference(s)

ILOAT Judgment(s): 532, 1674, 2573, 2573

Keywords

internal remedies exhausted; administrative decision

Considerations 35-37

Extract:

The Tribunal must emphasise that the manner in which WHO handled this case amounted to serious wrongdoing. The abrupt termination of the complainant’s appointment after the measures adopted by the Swiss authorities was prompted by an anomalous situation which, although it was primarily due to the complainant’s unlawful presence in Switzerland dating back several years, was also the result of grave malfunctioning within the Organization.
Indeed, when recruiting its officials an international organisation must ensure that their status complies with the laws of the host State governing the residence of aliens, failing which it may be held to have abused the privileges and immunities conferred upon it and upon its staff members.
In the instant case WHO acted with great negligence from this point of view since, as is plain from the file, it failed to carry out any checks to ascertain the complainant’s status in this respect when he was recruited and when his appointment was extended on the first two occasions. This negligence was aggravated when the complainant then submitted an application for a legitimation card, because the Organization mechanically forwarded this application to the Permanent Mission of Switzerland, although the complainant merely produced the above-mentioned power of attorney with the letterhead of the UNIA trade union as proof that he was lawfully present in Switzerland. Clearly this document could not be deemed in any way to be the equivalent of a residence permit issued by the Swiss authorities, or even as a guarantee that the complainant’s status would be regularised in the near future.

Keywords

negligence; termination; host state

Consideration 42

Extract:

It is obviously not incumbent upon the Tribunal to express an opinion as to whether the actions of the authorities of the host State of an international organisation are lawful, particularly with respect to the stipulations of the headquarters agreement between them, as such actions may ordinarily be challenged only in the courts of that State.

Keywords

competence of tribunal; host state

Consideration 43

Extract:

The Tribunal observes that […] it is a moot point whether, in the circumstances of this case, it was not up to WHO to grant the complainant the benefit of the duty of protection and assistance which every international organisation owes to its officials under a general principle of international civil service law, which was established by the International Court of Justice in an advisory opinion of 11 April 1949 and confirmed by the Tribunal in its earliest case law in Judgment 70.

Reference(s)

ILOAT Judgment(s): 70

Keywords

duty of protection and assistance

Consideration 45

Extract:

[I]n the very special circumstances of this case, WHO must be held responsible for the fact that – even if, in cancelling his journey to Côte d’Ivoire, the complainant’s reaction to the situation at that time was inappropriate – he was objectively deprived by the unlawful termination of his appointment of a possibility of regularising his stay in Switzerland and thereafter possibly continuing in service in the Organization. The injury thus suffered calls for redress the terms of which will be determined by the Tribunal.

Keywords

injury; damages; termination

Consideration 50

Extract:

Consistent precedent first established in Judgment 782 has it that the first condition governing an official’s right to the fulfilment of a promise made by an international organisation is that the “promise should be substantive”.

Reference(s)

ILOAT Judgment(s): 782

Keywords

promise

Considerations 52-53

Extract:

[T]he Tribunal considers that there are grounds for giving the complainant a new six-month temporary appointment, as was recommended by the Headquarters Board of Appeal. The award of such an appointment constitutes the most appropriate means of redressing the injury suffered by the complainant, since it will offer him a fresh opportunity to regularise his stay in Switzerland on the same conditions as those which obtained in May 2008, when he was deprived of that possibility by the effects of the termination of his appointment.
Within one month of the delivery of this judgment WHO must therefore offer the complainant a six-month temporary appointment on the same terms of employment in all respects as that of 3 January 2008. The performance of this contract will, however, be subject to the prior regularisation of the complainant’s situation in respect of the right to temporary residence in Switzerland, either through the granting of an entry visa by the Swiss Embassy in his country of origin or, if appropriate, through the issue of a residence permit by the Office cantonal de la population.

Keywords

order to issue a contract

Consideration 55

Extract:

[P]rovided that the complainant regularises his stay in Switzerland beforehand by one of the procedures referred to above, there are grounds for ordering the Organization to request that he be issued a legitimation card according to the normal procedure. Contrary to WHO’s submissions, it does lie within the Tribunal’s powers to demand that it take such action, since under Article VIII of the Statute of the Tribunal, when the latter finds that an international organisation has not fulfilled one of its obligations, it may order any requisite measure to ensure the performance of that obligation (see Judgment 2720, under 17).

Reference(s)

ILOAT Judgment(s): 2720

Keywords

order



 
Last updated: 18.12.2018 ^ top