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Judgment No. 607

Decision

1. THE IMPUGNED DECISION IS QUASHED INSOFAR AS IT REFUSED THE COMPLAINANT SICK LEAVE WITH EFFECT FROM 1 APRIL 1981.
2. HE IS REFERRED TO THE DIRECTOR-GENERAL FOR REVIEW OF HIS ENTITLEMENTS.
3. UNESCO SHALL PAY HIM 10,000 FRENCH FRANCS IN COSTS.
4. HIS OTHER CLAIMS ARE DISMISSED.

Consideration 23

Extract:

The decision to refuse sick leave [by renewing a fixed-term contract] is quashed. "The Tribunal takes the view that pay for the period of sick leave will adequately compensate the complainant for the injury caused by the [organization's] unlawful decision, and there should be no further damages."

Keywords

contract; extension of contract; fixed-term; non-renewal of contract; sick leave; refusal

Consideration 17

Extract:

The Director-General's decision to refuse the complainant sick leave is quashed. The duration of sick leave "may be determined only after medical inquiry. But the Tribunal will not order the submission of further evidence. When Unesco comes to execute this judgment the parties should be able to reach agreement [...] Failing that, the complainant may always come before the Tribunal again."

Keywords

expert inquiry; period; medical examination; sick leave

Consideration 15

Extract:

A memorandum from the Director-General sets the conditions for renewal a fixed-term contract on the grounds of illness. "The memorandum is [...] material evidence, even though it is not part of the Staff Regulations, and the Tribunal will hold that Director-General overlooked essential facts if he refused renewal despite the complainant's fulfilling the conditions set in the memorandum."

Keywords

organisation's duties; administrative instruction; enforcement; contract; extension of contract; sick leave; disregard of essential fact

Consideration 19

Extract:

"The complainant held a fixed-term appointment. On the expiry of each period of appointment the organization may, under the provisions cited [...], decide against renewal. But the existence of the provisions constitutes no bar to applying the case law. Otherwise all an organisation need do to evade review by the Tribunal and deprive a fixed-term official of a form of protection he is entitled to would be to provide that he had no right to renewal."

Keywords

case law; contract; fixed-term; non-renewal of contract; judicial review

Consideration 5

Extract:

On questions of principle, the Tribunal holds that "a staff member whose fixed-term appointment has expired may not be declared out of time so long as his former employer has not informed him of the non-renewal. Normally, the non-renewal will be an explicit decision. Only where a staff member has expressly applied for renewal will rejection of his application be implied on the expiry of the time limits set".

Keywords

express decision; receivability of the complaint; time limit; start of time limit; time bar; contract; fixed-term; non-renewal of contract; condition

Consideration 8

Extract:

"To determine whether the internal means of redress were exhausted the Tribunal must consider whether the time limits set in the Statutes of the Appeals Board were observed. [...] Proper administration requires the setting of time limits. But they are not supposed to be a trap or a means of catching out a staff member who acts in good faith."

Keywords

internal remedies exhausted; time limit; purpose

Consideration 4

Extract:

The organisation contends that the complainant, who knew that his contract had expired, had no reason to expect to be notified of its non-renewal. He should therefore have challenged the decision not to renew, which was implicit in the expiry of his appointment, in time. "To allow [the organisation's] plea would enable its competent officers to resolve to deal with such questions only if they thought fit. That would make for an increase in the number of claims dealt with ex gratia on the grounds that they had not been lodged on expiry of the appointment, and so administration would become arbitrary."

Keywords

receivability of the complaint; internal appeal; time limit; start of time limit; time bar; contract; fixed-term; non-renewal of contract

Consideration 4

Extract:

On the matter of renewal, the Director-General has wide discretion, while the Tribunal's power of review is limited. "This relates to questions of substance, but not procedural rules, which are never applicable at discretion. To rule otherwise would increase the risk of dispute. To avoid being time-barred staff members would make a practice of filing claims, although very often the cumbersomeness of administration is wholly to blame for the tardy decision."

Keywords

procedure before the tribunal; contract; fixed-term; non-renewal of contract; judicial review; discretion; limits

Consideration 22

Extract:

"On the evidence before it the Tribunal can only reject the accusation. There is no proof of malice. As regards the possibility of a new assignment, although none of the complainant's applications was successful the Director-General gave reasons each time for refusing them, the reasons are legitimate and the decisions were in Unesco's interests. There was objective study of the possibilities of reassignment."

Keywords

lack of evidence; contract; fixed-term; non-renewal of contract; bias



 
Dernière mise à jour: 25.08.2020 ^ haut