Judgment No. 3861
1. The impugned decision and that contained in the email of 12 December 2013 are set aside.
2. The ICC shall pay the complainant 38,132 euros in compensation for financial injury.
3. It shall also pay her one symbolic euro for moral and professional injury.
4. It shall pay her costs in the amount of 6,000 euros.
The complainant challenges the refusal to grant her flexible working arrangements during the breastfeeding period.
working conditions; working hours; breastfeeding
The Tribunal points out that the term “decision” means an act by an officer of an organisation which has a legal effect (see, for example, Judgments 532, under 3, and 3141, under 21). Having examined the two aforementioned emails, one containing a suggestion to the complainant and the other informing her of guidelines applicable within the ICC, it is obvious that they do not constitute administrative decisions. Moreover, in Judgment 2644, under 8, the Tribunal explained that “[t]here are occasions when a staff member may treat a communication or other action [...] as embodying a decision with respect to his or her entitlements (see Judgment 2629 [...]).However, where, [...] there is no indication that the communication in question constitutes a final decision, there are and may be circumstances that lead a staff member to reasonably conclude that it does not. Particularly is that so if, [...] it concerns a matter that has not been the subject of an express claim or there is nothing to suggest that the matter in question has been considered by a person with authority to make a final decision thereon.”
ILOAT Judgment(s): 532, 2629, 2644, 3141
decision; administrative decision
With regard to the objection that the complaint is irreceivable ratione temporis, the Tribunal recalls that it has ruled, with respect to an internal appeal filed by an official, that a time limit expiring on a Saturday is automatically extended to the following Monday if Saturday is a non-working day in the organisation concerned (see Judgments 2831, under 3, and 3566, under 4).
ILOAT Judgment(s): 2831, 3566
internal procedure; late appeal; saturday
In Judgment 3024, under 12, the Tribunal recalled that the principle of good faith and the concomitant duty of care demand that international organisations treat their staff with due consideration in order to avoid causing them undue injury; an employer must consequently inform officials in advance of any action that may imperil their rights or harm their rightful interests (see Judgment 2768, under 4). In this case, the Court refused to adjust the complainant’s working conditions, disregarding her status as a breastfeeding woman, and instead suggested that she took special leave without pay, although it could have allowed her to continue work, for example by exempting her from travel to non-family duty stations throughout the breastfeeding period. Indeed, the submissions in the file show that this option was not outright impossible, as is evidenced by the fact that, when the complainant again became pregnant in 2014, the Court adjusted her responsibilities to avoid her having to travel to non-family duty stations. By failing to do so in 2013 the Court breached its duty of care.
ILOAT Judgment(s): 2768, 3024
good faith; duty to inform; duty of care
In compensation for the financial injury which she suffered, the ICC will be ordered to pay the complainant the full remuneration which she would have received during her special leave [...].