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Judgment No. 349

Decision

1. The decision of the Director-General of 30 November 1976, in so far as it concerns the first and second claims of the complainant, is quashed and it is ordered that the organisation pay to the complainant:
(a) in satisfaction of the first claim 12,000 United States dollars with interest thereon at 8 per cent per annum running from 1 September 1977; and
(b) in satisfaction of the second claim, an amount equal to 10 per cent of the basic salary payable to the complainant for the months of March to August 1976 inclusive with interest thereon at 8 per cent per annum running from 1 September 1976.
2. The other claims are dismissed.
3. The applications to intervene mentioned in the second paragraph of the preamble of the present judgment are dismissed.

Consideration 24

Extract:

the complainant's attitude and expressions were interpreted as showing a degree of disrespect to his direct superior, who had not however made any rebuke on earlier occasions and who found himself as negotiator in confrontation with the complainant in meetings on working conditions "...the tribunal concludes that any offence that was given did not deserve more than a reprimand." the selection of the appropriate penalty is a discretionary one, but this discretion must be exercised subject to the principle of proportionality. "...the penalty of summary dismissal was out of proportion to any offence committed."

Keywords

proportionality; termination; misconduct; conduct; insubordination; disciplinary measure; summary dismissal; discretion

Consideration 29

Extract:

"the complainant can only claim overtime in accordance with his contract and his contract was never amended. ...the complainant cannot base a separate claim for overtime on a provision that was not a term of his contract..."

Keywords

provision; contract; overtime; condition; payment; right

Consideration 32

Extract:

The complainant was summarily dismissed for disrespectful conduct. His dismissal was out of proportion with the offence. "The Tribunal will not order the reinstatement of the complainant. This could create a difficult situation [...] for which the complainant's abrasive conduct would be partly to blame." Compensation must be substantial: he had indefinite employment in an excellent post and suffered serious economic losses from the loss of employment. "The Tribunal must however take account of the fact that while the complainant's employment with the organisation might have lasted for the rest of his working life, [he was thirty years of age at the time.] There is a risk that a man of his temperament might sooner or later have given just cause for dismissal."

Keywords

complaint allowed; amount; decision quashed; proportionality; contract; permanent; termination; misconduct; conduct; insubordination; material damages

Consideration 35

Extract:

"in appropriate cases in which a complainant has obtained relief against an organisation, it is the practice of the tribunal to order the organisation to pay to the complainant a fixed sum in respect of his legal costs." under a provision of the staff regulations, "the complainant is entitled to present a claim to the organisation and to be reimbursed any costs which he has reasonably incurred in the proceedings. it would not therefore be appropriate for the tribunal to make any order for costs until after the complainant has exhausted his rights under the regulation."

Keywords

staff regulations and rules; enforcement

Consideration 34

Extract:

"the organisation asks the tribunal to order the complainant and the interveners to pay an equitable contribution towards the lawyers' fees incurred by the organisation. it is true that the organisation has succeeded against the interveners and on some of the claims made by the complainant. but it has never been the practice of the tribunal to order the complainant to pay the whole or any part of an organisation's costs even when the claim has entirely failed."

Keywords

organisation; tribunal; no award of costs; practice; refund; counsel

Consideration 19

Extract:

the direct superior was a wage bargainer in meetings on conditions of work. "things can be said in free negotiations about conditions of work in a manner which cannot be used in answer to an order which has to be obeyed. a negotiator does not need to be armed with disciplinary sanctions; he is as free as any other individual to break off discussions with anyone whose manner he finds intolerable. it is because a superior officer cannot break off relations with his subordinates that sanctions against disrespect have to be provided."

Keywords

insubordination; supervisor; disciplinary measure; collective bargaining

Consideration 31

Extract:

"under [the applicable provision] the complainant should have made his claim within six months from the date the injury originated or at latest within six months of the date when its serious consequences became manifest, and this he has failed to do. it is not enough to report the occurrence, as the complainant claims he did to a direct superior or to the organisation's male nurse or medical doctor; there must be a claim for compensation."

Keywords

receivability of the complaint; time limit; time bar; accident; service-incurred; invalidity

Consideration 27

Extract:

the organisation was in breach of contract in that it failed to specify and pay the night work indemnity. the complainant is accordingly entitled to be paid the indemnity in full; were it not for a regulation which prescribes that claims relating to the payment of indemnities may not be raised later than six months from the date on which the staff member became entitled to raise such a claim, he would have been entitled to back payments from the time he joined the organisation. but he is thereby barred from claiming more than six months' arrears.

Keywords

organisation; time limit; breach; contract; allowance; night differential; payment



 
Last updated: 04.04.2017 ^ top