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Judgment No. 595

Decision

1. THE IMPUGNED DECISION IS QUASHED INSOFAR AS IT WAS IN BREACH OF RULES 1030.3.1 AND 1030.3.4. THE COMPLAINANT IS REFERRED BACK TO THE WHO FOR CORRECTION OF HIS ADMINISTRATIVE POSITION PRIOR TO TERMINATION.
2. THE SUMS PAYABLE TO THE COMPLAINANT SHALL BEAR INTEREST AT 10 PER CENT A YEAR FROM THE DATE ON WHICH THEY WERE DUE.
3. HE IS AWARDED 2,000 SWISS FRANCS AS COSTS.
4. HIS REMAINING CLAIMS ARE DISMISSED.

Summary

Extract:

during the proceedings, the organization invited the tribunal to lift the obligation of professional secrecy to allow the tribunal access to the complainant's medical file. the complainant declined to allow this and by order of the tribunal, the application was rejected on the grounds that only a patient might release his physician from professional secrecy. after the exchange of briefs, the complainant expressed agreement with his medical file being made available to the tribunal. the tribunal disallowed the reopening of proceedings for the file to be submitted. the complainant's own attitude is responsible for no evidence of the temporary nature of his illness having been presented.

Keywords

complainant; organisation; confidential evidence; disclosure of evidence; medical records; refusal; request by a party

Consideration 3

Extract:

the complainant, whose contract was ended for reasons of health, refused disclosure of his medical file. "he [...] produces several certificates from doctors who have treated him. while not questioning their professional competence, the tribunal will observe that the certificates have no value as evidence since the complainant refuses to let the who physician state his opinion. the complainant's position has destroyed the parity there should be between the parties, and the tribunal can restore it only by discounting the medical certificate she has produced."

Keywords

evidence; appraisal of evidence; disclosure of evidence; adversarial proceedings; termination; health reasons; medical certificate

Consideration 6

Extract:

the material date was that on which the complainant received the letter of termination. the period of notice should begin on that date and the termination payment and the disability payment should be calculated and paid accordingly. "any other conclusion would offend against the rule that a decision must not be retroactive in effect. [...] no organisation may retroactively alter at will the position of its staff. the effect of the who's arrangement might be to do away with one of the benefits prescribed" in the material staff rules. the decision is set aside; the complainant's administrative position must be reviewed.

Keywords

complaint allowed in part; date of notification; case sent back to organisation; non-retroactivity; terminal entitlements; termination; notice; disability benefit; date; payment

Consideration 7

Extract:

"the rule [against retroactivity] does not preclude making the finding of fact at a date prior to that of the decision."

Keywords

general principle; non-retroactivity; consequence

Consideration 2

Extract:

"the purpose of the procedural rules the tribunal applies is to enable the parties not only to submit full pleadings but also to hold an exchange of briefs in which they enjoy complete freedom of speech. [...] as a rule the tribunal allows each side to file no more than two briefs and closes the written proceedings after the defendant has filed the surrejoinder. only in exceptional cases does it admit further material."

Keywords

procedure; exception; submissions; further material; closure of written proceedings

Consideration 4

Extract:

the evidence does not reveal whether reassignment possibilities were explored by the organization as required by staff rules. "only the employer may provide such evidence. [...] but the reason why the point remains obscure is that the complainant will not allow the tribunal access to the whole file." the original decision to terminate the appointment made mention of no special reasons for it, nor were any required. there is no formal defect.

Keywords

organisation; burden of proof; reassignment; termination

Consideration 3

Extract:

the complainant, whose contract was terminated for health reasons, declined to allow access to his medical file, he applies for an expert inquiry. "this claim [...] fails. the tribunal is never bound to order such an inquiry". the tribunal does not believe an inquiry necessary to ascertain the truth. "in coming to that view it is not making an appraisal of fact which is outside the competence of its members; this is no more than the consequence in law of the fact of the complainant's refusal to allow disclosure of the medical file."

Keywords

complainant; tribunal; expert inquiry; termination; health reasons; medical examination; refusal; request by a party

Consideration 5

Extract:

the complainant did not plead breach of the staff rule in question during the internal appeal, but that does not prevent him from doing so for the first time before the tribunal. his plea of breach of the rule "falls within the scope of his claims, which remain the same. the question therefore arises whether the plea is sound."

Keywords

receivability of the complaint; new plea; staff regulations and rules; breach; provision



 
Last updated: 23.10.2012 ^ top