Judgment No. 4222
Decision
1. The second complaint is dismissed.
2. The decision of the Director-General of UNESCO of 3 August 2018, as well as those of 18 February 2016 and 25 July 2016, are set aside.
3. The Organization shall pay the complainant 15,000 euros in moral damages.
4. It shall also pay the complainant 5,000 euros in costs.
5. All other claims under the third complaint are dismissed.
Summary
The complainant challenges the refusal of UNESCO to award full compensation for the injury suffered as a result of an accident recognized as being service-incurred.
Judgment keywords
Keywords
complaint allowed; decision quashed; professional accident; service-incurred
Consideration 3
Extract:
The Tribunal, noting that the two complaints are essentially based on the same facts, involve the same parties and raise the similar legal issues, considers it appropriate to join them so that they may form the subject of a single judgment.
Keywords
joinder
Considerations 6-8
Extract:
The case law of the Tribunal establishes that, when under an organization’s Staff Rules and Staff Regulations only serving officials have access to the internal appeal procedures, former officials have no possibility of using them and they are then entitled to file a complaint directly with the Tribunal (see, for example, Judgments 2840, consideration 21, 3074, consideration 13, or 3156, consideration 9).
In the case of UNESCO, the Tribunal has already held that Staff Regulation 11.1, Staff Rule 111.1 and the Statutes of the Appeals Board confine access to internal means of redress to “staff members”, in other words solely to serving officials. In pursuance of this case law, it held that a former staff member could not use the internal means of redress to challenge a decision taken after she had left the Organization (see Judgment 2944, consideration 20).
However, the wording of the provisions of paragraph 7 of the Statutes of the Appeals Board makes it clear that a staff member who “has been separated” may submit an appeal to the Board. As the Tribunal explained in Judgment 3398, considerations 2 and 6, the internal means of redress established by the Staff Regulations and Staff Rules are open to any person who has been affected by a decision in her or his capacity as an official, even if she or he has since left the Organization. A staff member of UNESCO whose appointment has ended is therefore still entitled to use the internal means of redress if she or he wishes to challenge a decision taken before her or his separation.
Reference(s)
ILOAT Judgment(s): 2840, 2944, 3074, 3156, 3398
Keywords
direct appeal to tribunal; internal appeal; internal remedies exhausted
Consideration 12
Extract:
[I]t would be contrary to the principle of good faith, which required that the complainant should receive a timely reply, to considering her appeal as time-barred.
Keywords
good faith; late appeal
Consideration 14
Extract:
At this stage of its findings, the Tribunal should normally refer the case back to the Organization for the Appeals Board to examine the complainant’s appeal. However, given the length of time since the events and the fact that the case has already been remitted to UNESCO by Judgment 3397, the Tribunal will not do so again in the instant case and will itself examine the merits of the complainant’s claims.
Reference(s)
ILOAT Judgment(s): 3397
Keywords
case sent back to organisation
Considerations 15-17
Extract:
According to article 4 of the Staff Compensation Plan:
“The compensation payable under these Rules shall be the sole compensation to which any person shall be entitled as against the Organization in respect of any claim falling within the provisions thereof”.
Contrary to the defendant organization’s submissions, these provisions do not preclude a staff member from claiming compensation for the consequences of negligence on the part of the Organization. Such a claim cannot be regarded as being based on the provisions of this plan (see, for similar cases, Judgments 3689, consideration 5, and 3946, consideration 17).
[...]
According to the Tribunal’s case law, an organization may incur liability in negligence where it fails to take reasonable steps to prevent a foreseeable risk of injury (see Judgments 2804, consideration 25, 3215, consideration 12, and 3733, consideration 12). In the instant case, it is apparent from the file that the floor of the podium set up for the seminar was defective and should have been repaired or, at least, signposted, as evidenced by the occurrence of the accident.[...]
According to the Tribunal’s case law, an international organization has a duty to provide a safe and adequate environment for its staff, and they in turn have the right to insist on appropriate measures to protect their health and safety (see Judgments 3025, consideration 2, 2403, consideration 16, and 3689, consideration 5).
In the instant case, the Organization, which had ordered the construction of the podium in which the hole was found, should have ensured that this work was properly carried out. It must therefore be recognized that the Organization is at fault.
Pursuant to the principle that full compensation is due in respect of injuries caused by negligence on the part of the Administration, the complainant is entitled to compensation for injuries not already compensated under the Staff Compensation Plan.
Reference(s)
ILOAT Judgment(s): 2403, 2804, 3025, 3215, 3689, 3689, 3733, 3946
Keywords
negligence; allowance; professional accident; compensation; construction work
Consideration 18
Extract:
The complainant alleges various material injuries involving costs incurred in relation to the accident. However, it must be noted that she does not produce any invoices substantiating the actual amounts concerned and does not provide any reasons why those documents might not be in her possession. The Tribunal cannot therefore award compensation for the injuries in question.
Keywords
material injury; burden of proof
Consideration 18
Extract:
While the complainant also alleges that she has lost the opportunity to be offered a consultancy contract by the Organization after her retirement, this injury, which is purely hypothetical, cannot give rise to compensation.
Keywords
material injury; loss of opportunity
Consideration 18
Extract:
With regard to moral injury, the accident caused the complainant physical suffering and disruption to her living conditions that were not compensated under the Staff Compensation Plan.
Keywords
moral injury
Consideration 18
Extract:
The complainant further alleges specific moral injury resulting from the excessive length of the internal appeals procedure. It is true that this procedure, which spanned some seven years for reasons mostly attributable to the Organization, was unreasonably long. The Tribunal considers, however, that this excessively long period did not in itself cause serious injury to the complainant.
Keywords
moral injury; delay in internal procedure
Consideration 18
Extract:
[W]ith regard to the other moral injuries alleged by the complainant, these appear, in the Tribunal’s view, to be negligible and therefore do not warrant substantial compensation.
Keywords
moral injury
Consideration 20
Extract:
The complainant’s counsel requests the Tribunal to deduct certain amounts for his benefit from the monetary awards made to the complainant. However, it is not for the Tribunal to concern itself with private arrangements made between complainants and their counsel (see Judgment 4072, consideration 21). This request must therefore be rejected.
Reference(s)
ILOAT Judgment(s): 4072
Keywords
costs
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