Judgment No. 3506
1. The withdrawal of the first complaint is hereby recorded.
2. The implied decision of the Executive Director of the Global Fund dismissing the complainant’s internal appeal and the decision of the Head of the Human Resources Department of 15 March 2012 are set aside.
3. The Fund shall pay the complainant 8,647 Swiss francs to cover her hospitalisation expenses for the period between 1 January and 31 March 2012, together with interest thereon, as indicated under 20.
4. There is no need to rule on the complainant’s claim that the Fund should be ordered to defray the expenses related to other medical treatment which she received up until 30 June 2013.
5. The Fund shall pay the complainant 10,000 francs in moral damages.
6. It shall also pay her costs in the amount of 5,000 francs.
7. All other claims are dismissed.
The complainant challenges the refusal of some of her requests for the defrayal of medical expenses.
joinder; insurance benefit; service-incurred
"Notwithstanding th[e] withdrawal of suit, the Fund insisted on pursuing the proceedings, as it wished to claim costs against the complainant on the grounds that the complaint was vexatious.
Without ruling out, as a matter of principle, the possibility of making such an order against a complainant (see, for example, Judgments 1884, 1962, 2211 and 3043), the Tribunal will avail itself of that possibility only in exceptional situations. Indeed, it is essential that the Tribunal should be open and accessible to international civil servants without the dissuasive and chilling effect of possible adverse awards of that kind. In the instant case, the aforementioned complaint cannot be regarded as manifestly vexatious, even though it was clearly irreceivable because internal remedies had not been exhausted. The Fund’s counterclaim will therefore be dismissed."
Jugement(s) TAOIT: 1884, 1962, 2211, 3043
withdrawal of suit; counterclaim
"The Tribunal will not accept the defendant organisation’s objection that, in view of the withdrawal of the first complaint, the complainant is effectively barred from lodging another complaint raising substantially the same issues. […] It is plain that neither the withdrawal of suit itself nor the res judicata authority of this judgment by which the withdrawal is recorded precludes the filing of the second complaint in question."
res judicata; withdrawal of suit
"The Global Fund then submits that the Tribunal is not competent to hear this dispute, as it is a dispute between the complainant and the insurance companies and, in its opinion, does not concern the organisation itself. The Fund is, however, greatly mistaken as to the nature of this dispute and the duties incumbent upon it in this case.
International civil servants’ social protection forms an integral part of their terms of employment, which are the responsibility of the organisation for which they work. For this reason, despite the defendant organisation’s insistence to the contrary, where an organisation entrusts the responsibility for providing social protection to a private insurance company, as is the case here, the organisation has a duty to ensure that the insurer correctly processes the claims submitted by insured persons. In this situation, the organisation is in fact liable for the acts of its insurer (see, for example, Judgments 2063, under 8, or 3031, under 14, 18 and 19).
In the instant case, the matter raised by the complainant is not in dispute between her and the insurance company, but between her and the Fund itself, and it concerns precisely the latter’s compliance with its duty to ensure the proper examination of a claim for the reimbursement of medical expenses. This matter does fall within the Tribunal’s competence (see, for example, in addition to the aforementioned Judgments 2063 and 3031, Judgments 2249 and 3030)."
Jugement(s) TAOIT: 2063, 2249, 3030, 3031
"As the Tribunal has consistently held in such circumstances, pursuant to Article VII, paragraph 3, of its Statute, the complainant could therefore impugn directly before the Tribunal the implied decision arising from the absence of an explicit decision at the end of the internal appeal proceedings (see, for example, Judgments 2070, under 5, 2562, under 5 and 6, and 2866, under 5)."
Jugement(s) TAOIT: 2070, 2562, 2866
"[T]he complainant principally asks the Tribunal to order the Fund to instruct the insurance company to defray her hospital expenses for the disputed period. Such a claim is irreceivable, since it is firmly established by the case law that it is not for the Tribunal to issue injunctions against organisations (see, for example, Judgments 2370, under 19, or 2541, under 13)."
Jugement(s) TAOIT: 2370, 2541
"[A]s the organisation is liable for the acts of its insurer […], the Fund itself must be ordered to reimburse the disputed expenses, which it may then seek to recover from the insurance company."