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Judgment No. 507

Decision

1. THE DECISION OF THE DIRECTOR-GENERAL DATED 21 MAY 1981 IS QUASHED.
2. THE TRIBUNAL, FINDING REINSTATEMENT TO BE IMPOSSIBLE OR INADVISABLE, ORDERS THAT THE ORGANISATION PAY TO EACH COMPLAINANT AS COMPENSATION FOR WRONGFUL DISMISSAL A SUM EQUAL TO THREE TIMES THE TOTAL GROSS REMUNERATION PAID TO HIM IN RESPECT OF THE PERIOD 1 MARCH 1980 TO 28 FEBRUARY 1981 AND AS IMPROVED BY ANY RETROACTIVE ADJUSTMENT GRANTED BY THE ORGANISATION.
3. IT IS ORDERED THAT THE ORGANISATION SHALL ASCERTAIN THE SUM WHICH OUGHT TO HAVE BEEN CONTRIBUTED TO THE NATIONAL SOCIAL SECURITY SYSTEM IN RESPECT OF THE AGUINALDOS PAID TO EACH OF THE COMPLAINANTS IN DECEMBER 1980 AND SHALL FURTHER ASCERTAIN THE AMOUNT OF SUCH CONTRIBUTION WHICH SHOULD HAVE BEEN PROVIDED BY THE ORGANISATION AND THE AMOUNT WHICH THE ORGANISATION SHOULD HAVE DEDUCTED FROM EACH COMPLAINANT'S MONTHLY REMUNERATION: IF THE FORMER BE FOUND TO EXCEED THE LATTER, THE ORGANISATION SHALL PAY THE EXCESS TO EACH COMPLAINANT.
4. ALL THE SUMS PAYABLE AS ABOVE SHALL BEAR INTEREST AT THE RATE OF 12 PER CENT PER ANNUM FROM THE DATE OF THE COMPLAINT.
5. THE ORGANISATION SHALL PAY US$1,000 TO EACH COMPLAINANT AS COSTS.
6. ALL THE OTHER CLAIMS OF THE COMPLAINANTS ARE DISMISSED.

Consideration 2

Extract:

the complainants received letters dated 6 march signed by an officer of the personnel service terminating their employment upon the instructions of the director-general. "it does not [...] follow from this [...] that the letter [...] was a final decision. it would not so follow even if that letter had been signed by the director-general himself. not every decision of the director-general is a final decision. the complainants assumed rightly that the director-general would not reach a final decision until after he had considered carefully what they had to say. his letter of 21 may was not, as the organisation contends, 'purely confirmatory' of the letter of 6 march and it contains the final decision. the objection to receivability is overruled."

Keywords

decision; confirmatory decision; receivability of the complaint

Consideration 4

Extract:

"the decisions of the supreme court are not of course binding on the tribunal, but this does not mean that they cannot be used as an aid to interpretation. when a court or tribunal has to interpret a clause it is always permissible for it to consider how the same clause has been interpreted by other courts and tribunals who can speak with authority."

Keywords

tribunal; judgment of the tribunal; municipal court; interpretation

Consideration 11

Extract:

"the complainants say that as a result of collective bargaining a salary study is made annually and followed by a general improvement in the salary levels. they do not, however, allege that there is any contractual obligation on the organisation to increase salaries in this way. the organisation agrees that, if any improvement is made, it must be paid to all, including the complainants, in the same position. the compensation payable to the complainants for their wrongful dismissal should be assessed accordingly."

Keywords

amount; salary; adjustment; termination; elements

Consideration 4

Extract:

"having regard to the fact that the clause [which reproduces an article of the chilean labour code] is in spanish, a language with which the tribunal is not familiar, and has to be applied to conditions in chile with which likewise the tribunal is not familiar, the tribunal would be foolish if it did not attach great weight to the observations of a supreme court which is familiar with both. moreover, the basic idea of the supreme court's interpretation [...] appears to the tribunal to accord very well with the object of the clause."

Keywords

tribunal; domestic law; municipal court; interpretation; acceptance

Consideration 10

Extract:

"the relief sought by the complainants is an order or declaration that the organisation is liable to contribute to the [social security] scheme in respect of the [gratifications] paid to the complainants. it is unusual for the tribunal to give relief in this form, especially where third parties such as the [national] authorities are involved. the normal method of relief would be an order against the organisation that it should compensate the complainants for the loss they have sustained." [here: the difference between contributions from the organisation and contributions from the complainants].

Keywords

injury; competence of tribunal; organisation's duties; insurance; contributions

Consideration 9

Extract:

the regulations provide for the organisation to contribute "to a national social security system" in respect of its employees. the organisation claims that national law is not binding upon it and that it can adopt what parts of the scheme it chooses. this is mistaken. having voluntarily decided to contribute to the scheme and to require its employees to do likewise, the organisation has put itself under the contractual obligation to the complainants to comply fully with the scheme."

Keywords

organisation's duties; domestic law; enforcement; contract; insurance

Consideration 7

Extract:

the tribunal granted that a rule allowed for dismissal in cases of economic problems of a permanent kind. no explanation of the circumstances which may have made staff reductions unavoidable is contained in the dossier. although prudence might have led to such a measure, that would not suffice to bring the relevant clause into operation. "in supposing that it was [sufficient], the director-general must have misconstrued the rule and thus been led to exceed his powers. the [dismissal] decision impugned was outside his authority and must be quashed on that ground."

Keywords

complaint allowed; grounds; decision quashed; contract; permanent; abolition of post; termination; staff reduction; misuse of authority



 
Last updated: 22.03.2017 ^ top