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Judgment No. 323

Decision

It is ordered:
1. that the decision of the Director General of 2 April 1976 be quashed;
2. that the pensionable salary payment made to the complainant on 28 May 1975 be recalculated on the basis that there should have been a 10 per cent interim adjustment instead of a 2 per cent, and that payment be made accordingly; and
3. that the other claims of the complainant be dismissed.

Consideration 7

Extract:

is the director-general required "to act independently as he thinks right ... when appointing, assigning and promoting staff, or [is he] acting as executive officer ... and carrying out the decisions of the council" ? the tribunal believes that the latter is the correct view... . "the council must act through the director-general. what the [regulation] requires is a decision by the director-general, but it is as satisfied with a decision which he is taking on the instructions of the council as with one which he is taking on his own responsibility."

Keywords

decision; competence; executive head; legislative body

Consideration 22

Extract:

"...the council in general in its dealings with the staff acts through the director-general to whom ... the staff is responsible and who ... carries out the council's decision."

Keywords

decision; competence; enforcement; executive head; legislative body

Consideration 22

Extract:

it is not the case that "a decision of the council which, when executed, will inevitably have an effect upon an official's rights, ipso facto alters those rights from the moment it is made and before it is executed. ...it is the director-general, not the council, who vis-a-vis the official fixes his salary; this is so, whether or not in fixing the salary the director-general is required to conform with decisions of the council."

Keywords

decision; general decision; competence; enforcement; salary; decision-maker; executive head; legislative body

Consideration 21

Extract:

"many of the obligations put upon the organization by the [staff] regulations are in general terms, leaving the organization free to choose its own method of discharging them. ... once it is settled, [the method] becomes, until it is altered, part of the obligation. ... until [a] change is made, an official is entitled to have the obligation discharged in the manner selected by the organization itself..."

Keywords

organisation's duties; practice; staff regulations and rules; amendment to the rules; enforcement; discretion

Consideration 28

Extract:

according to the organization, the modification of the salary schedule was decided by a legislative enactment of the council. if this is true, "it means that there is no control whatever over the dealings of an executive body such as the council with the staff of the organization ... since the director-general in his dealings with the staff is subject to the control of the council, it means that an official's contract gives him no rights which the council cannot nullify and in particular that he is paid his salary ex gratia and not as a matter of contract. in the opinion of the tribunal this is not the law."

Keywords

amendment to the rules; enforcement; contract; salary; scale; legislative body; right

Consideration 2

Extract:

"bearing in mind that the salary scales are established in consultation and on the basis of [certain] guiding principles, it is ... [the director-general's] duty in making revisions to have regard to the guiding principles. subject to this, his power to fix salary scales under [the applicable provision] is a discretionary one."

Keywords

organisation's duties; amendment to the rules; salary; scale; discretion

Consideration 34

Extract:

"...when the organization has calculated a payment of salary and announced it, the officials entitled to it acquire a right which the organization has no power to destroy."

Keywords

amount; acquired right; salary

Consideration 20

Extract:

under the applicable provision, the director-general is required "to fix [general service] salary scales on the basis of the best prevailing conditions. this is an obligation of a very general character and the director-general has a very wide discretion as to how he will carry it out."

Keywords

flemming principle; organisation's duties; general service category; salary; scale; discretion

Consideration 26

Extract:

"the conception of a legislative enactment, insofar as it applies to matters within the jurisdiction of the tribunal, means the power to alter unilaterally by general enactment the relationship created by the contract. the tribunal has recognised this power to the extent that it may affect those terms of the contract which appertain to the structure and functioning of the international civil service and to benefits of an impersonal nature and subject to variation, but not the the extent to which it purports to affect the individual terms and conditions of an official in consideration of which he accepted appointment."

Keywords

complaint allowed; decision quashed; acquired right; staff regulations and rules; amendment to the rules; contract; judicial review; discretion; limits; legislative body

Consideration 29

Extract:

"...the comparison of wage rates, especially when they include fringe benefits, is a difficult task, which may often involve delicate choice between several solutions of almost equal merit. ... the text to be interpreted is a set of principles and not of precise requirements. where it is alleged that the director-general has made an error of law in their interpretation, the tribunal will consider the text broadly and will be careful not to put the director-general's discretion into a legal straitjacket."

Keywords

interpretation; salary; fringe benefits; rate; judicial review; discretion

Consideration 25

Extract:

according to the organization "the decision impugned was taken by one of the governing bodies of the fao in the exercise of its constitutional powers and represented a legislative enactment. ...the term 'governing body' is not a term used in the constitution of the fao and there is no definition of what it means." the council is the executive organ of the conference, which is the organization's supreme body. the constitution gives the council such powers as the conference may delegate to it. "there is no assertion in the organization's reply of the delegation of any power that would justify the council in depriving any official of any part of the salary to which under the regulations he or she is entitled."

Keywords

competence; salary; decision-maker; executive body; reduction

Consideration 23

Extract:

"every time the organization commits a breach of an obligation, it necessarily decides to commit that breach. no matter how often a similar breach is repeated, it is not the same breach nor the same decision, and it gives rise to a fresh cause for complaint. ... if an organisation is in continuing breach a complaint alleging the breach may be made at any time..."

Keywords

complaint; receivability of the complaint; organisation's duties; continuing breach

Consideration 22

Extract:

"council decisions in staff matters are to be read as an instruction to the director-general. it is his duty to put them into a form which clearly conveys to the official in precisely what way his rights are affected. it is the director-general's decision which the official is entitled to have..."

Keywords

decision; duty to inform; enforcement; executive head; executive body

Summary

Extract:

under the "guiding principles for the determination or revision of conditions of service of staff in the general service category" the reckoning of interim adjustments is straightforward. whenever the local wage index goes up by 5 per cent an official's salary should also go up by 5 per cent. the complainant had her increase lowered to 1 per cent. the tribunal finds no evidence in the file that the progressive increase in italian income tax or that fringe benefits were behind the reduction. it holds that the reduction was either arbitrary or designed to serve some purpose of which it is ignorant.

Keywords

general service category; salary; fringe benefits; scale; adjustment; reduction



 
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