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Judgment No. 4219

Decision

1. The ITER Organization shall pay the complainant 6,000 euros moral damages.
2. The ITER Organization shall pay the complainant 4,000 euros costs.
3. All other claims are dismissed.

Summary

The complainant, who had been seconded to the ITER Organization, challenges the decision to end his secondment and the failure to investigate his harassment allegations.

Judgment keywords

Keywords

complaint allowed; competence; secondment; harassment; ratione personae

Consideration 4

Extract:

The defendant organisation contends in its reply that the Tribunal is not competent to deal with this complaint and that it is irreceivable. It also requests the Tribunal to make a procedural ruling limiting the proceedings in the first instance to a consideration of these two contentions. It is unnecessary to make such a procedural ruling. Mostly, when a party challenges the competence of the Tribunal or argues that a complaint is irreceivable, the Tribunal will treat these issues as threshold issues which need to be addressed before, if it becomes appropriate, addressing the merits of the case if the challenge to competence or receivability fails.

Keywords

receivability of the complaint; competence of tribunal

Consideration 7

Extract:

In relation to the challenge to the impugned decision, insofar as the Director-General concluded the complainant had no right of appeal, the following comment can be made. There can be no doubt that there is no general right of appeal available to staff of international organisations deriving, at least impliedly, from their terms of appointment to challenge decisions with which they are aggrieved irrespective of the provisions of applicable staff rules or regulations. However, even if the staff rules or regulations do not provide for an appeal, they cannot preclude the initiation of proceedings in the Tribunal (see, for example, Judgment 2312, consideration 3).

Reference(s)

Jugement(s) TAOIT: 2312

Keywords

competence; right of appeal

Consideration 9

Extract:

[T]he complainant relies on his right to come directly to the Tribunal. [T]hat right exists apart from a provision in the staff rules or regulations concerning the right of appeal.

Keywords

direct appeal to tribunal; right of appeal

Consideration 9

Extract:

The decision of the European Commission to make the recall is not justiciable before the Tribunal as it has not, as noted earlier, submitted to the Tribunal’s jurisdiction, even if it was possible.

Keywords

competence of tribunal; secondment; defendant organisation

Consideration 12

Extract:

The Tribunal now turns directly to the question of whether the complainant was an official for the purposes of the Tribunal’s Statute. In relation to seconded staff, it has been said by the Tribunal that “[a]s a general rule, the effect of secondment is to suspend the contractual relationship between the releasing agency and the employee, who retains the right to return to the releasing agency upon expiry of the secondment term without having to seek other employment. During secondment, [she or]he is subject to the staff regulations and rules of the receiving agency” (see Judgment 2184, consideration 4). Ultimately, of course, the status of a seconded employee has to be assessed having regard to the specific arrangements in place concerning the secondment. One case where a seconded employee was not viewed as an official or employee of the receiving organisation is Judgment 3247. Additionally, as the Tribunal observed in Judgment 2918, consideration 11, “[s]econdment is, in essence, a tripartite agreement which, ordinarily, involves an agreement between the person seconded and the receiving organisation, at least as to some matters”. In that case the applicability of the Staff Regulations depended on whether an individual had concluded an employment contract with the organisation and the Tribunal found the seconded staff had not. Additionally in that judgment reference was made to Judgment 703, which established that secondment does not necessarily preclude the person concerned from becoming a staff member of the organisation to which she or he is seconded.

Reference(s)

Jugement(s) TAOIT: 703, 2184, 2918, 3247

Keywords

competence; secondment; ratione personae; official; staff member

Consideration 17

Extract:

[T]he Tribunal has recognised that former officials can seek redress in the Tribunal when, inter alia, the former official is seeking to enforce rights which had arisen during the currency of her or his employment with the international organisation concerned (see, for example, Judgments 3505, consideration 3, and 3915, consideration 3).

Reference(s)

Jugement(s) TAOIT: 3505, 3915

Keywords

competence; former official; ratione personae; ratione materiae

Consideration 18

Extract:

While this complaint is receivable and one aspect of the complainant’s case is well founded, the question of relief is problematic. In relation to the alleged harassment, he seeks an order directed to the defendant organisation “to recognize that he has been a victim of harassment and compensate him for the damage he has suffered as a consequence of the harassment, in the amount of [euros] 50,000”. Even if it was appropriate, as a matter of principle, to make such an order, there is insufficient material before the Tribunal to undertake an assessment of whether harassment has occurred. Also, in the circumstances of this case, given that the complainant has left the ITER Organization, it would not be advisable to direct the ITER Organization to investigate his allegations (see Judgments 3639, consideration 9, or 3935, consideration 8). However, he is entitled to moral damages for the failure of the ITER Organization to do so[.]

Reference(s)

Jugement(s) TAOIT: 3639, 3935

Keywords

inquiry; harassment; moral damages



 
Dernière mise à jour: 22.05.2020 ^ haut