Judgment No. 3723
Decision
1. WMO shall pay the complainant interest calculated at 5 per cent per annum on the amount of 27,000 Swiss francs for the period 9 July 2014 to 31 January 2015, within 14 days of the date of public delivery of this judgment.
2. WMO shall pay the complainant 80,305 Swiss francs plus interest calculated at 5 per cent per annum from 31 January 2015 until the date of payment pursuant to this order, within 14 days of the date of public delivery of this judgment.
3. WMO shall pay the complainant 7,000 Swiss francs as costs, within 14 days of the date of public delivery of this judgment.
4. All other claims are dismissed.
Summary
The complainant has filed an application for execution of Judgment 3348.
Judgment keywords
Reference(s)
Jugement(s) TAOIT: 3348
Keywords
application for execution; complaint allowed; reinstatement
Consideration 2
Extract:
WMO […] argues […] that the application is irreceivable because the judgment had been fully satisfied. This argument concerning receivability is unfounded and should be rejected. An application for execution of a judgment is, by definition, premised on the contention that the judgment in question has not been properly executed. Determining whether or not that contention is correct plainly involves an examination of the merits of the application. Hence the receivability of an application for execution cannot be challenged by the defendant organisation on that basis.
Keywords
application for execution
Consideration 4
Extract:
[T]he effective date of reinstatement, if ordered, is the end of the employment (see Judgments 1193, consideration 13, 1384, consideration 18, 1447, consideration 17, 1525, consideration 4, 3238, considerations 19 and 20). It is possible for the Tribunal to order reinstatement effective from the date of judgment (see Judgment 1238, considerations 4 and 5, confirmed by Judgment 1313). However, that did not occur in this case and the order was not limited to operate only from the date of judgment. The order operated retroactively and the complainant was entitled to be reinstated from the date on which his employment ended [...].
Reference(s)
Jugement(s) TAOIT: 1193, 1238, 1313, 1384, 1447, 1525, 3238
Keywords
reinstatement
Consideration 7
Extract:
The second issue of detail about the complainant’s pension entitlements concerns an amount of interest, […], payable by the complainant to restore his prior contributory service. The amount is interest on the money paid by the UNJSPF to the complainant by way of withdrawal settlement […]. The complainant seeks the payment of this interest by WMO because the “interest charge was incurred as a direct result of his irregular separation set aside by Judgment 3348”. However, this argument fails to recognise that the complainant has had the benefit of the amount paid by the withdrawal settlement, regardless of how it has been used and, at least notionally, the complainant could have been earning interest on that sum himself. The complainant is not entitled to payment of this amount pursuant to the orders made by the Tribunal in 2014.
Reference(s)
Jugement(s) TAOIT: 3348
Keywords
pension entitlements
Consideration 8
Extract:
Ordinarily an employee who has the benefit of an order of reinstatement must be placed in the position she or he held at the time of the unlawful termination. This would mean that the employee would continue, once reinstated, to perform the duties that were being performed at the time of termination. …] But if, as in this case, a material period had passed between the termination and the order of reinstatement, organisational changes may have had the result that the full range of duties is no longer required. That is not a licence to underutilise any employee, as the complainant alleges in this case in relation to himself, who has the benefit of a reinstatement order. Underutilisation can have a stultifying and negative effect on an employee.
Keywords
reinstatement
Consideration 16
Extract:
The complainant is entitled to costs because these execution proceedings were necessary to achieve compliance with the Tribunal’s orders.
Keywords
costs awarded
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