Exception (113,-666)
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Keywords: Exception
Total judgments found: 212
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Judgment 2757
105th Session, 2008
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 19
Extract:
"[I]t is a fundamental aspect of due process that a person should not take a decision in a matter in which he or she has a personal interest. [However, in] some circumstances, necessity will direct that a decision be taken by a person with a direct personal interest in the outcome."
Keywords:
bias; decision; due process; exception; organisation's interest; safeguard; settlement out of court; staff member's interest;
Judgment 2722
105th Session, 2008
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3
Extract:
"As the Tribunal has repeatedly stated, for example in Judgments 602, 1106, 1466 and 2463, time limits are an objective matter of fact and it should not entertain a complaint filed out of time, because any other conclusion, even if founded on considerations of equity, would impair the necessary stability of the parties' legal relations, which is the very justification for a time bar. As recalled in Judgment 1466, the only exceptions to this rule that the Tribunal has allowed are where the complainant has been prevented by vis major from learning of the impugned decision in good time (see Judgment 21), or where the organisation by misleading the complainant or concealing some paper from him or her has deprived that person of the possibility of exercising his or her right of appeal, in breach of the principle of good faith (see Judgment 752). It does not, however, appear from the evidence, nor is it even alleged that the complainants in this case found themselves in either of these situations."
Reference(s)
ILOAT Judgment(s): 21, 602, 752, 1106, 1466, 2463, 2722
Keywords:
breach; case law; complaint; equity; exception; force majeure; good faith; grounds; receivability of the complaint; right of appeal; time bar; time limit;
Judgment 2700
104th Session, 2008
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"As the Tribunal has consistently held, the staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) its decision against him. Under normal circumstances, such evidence cannot be withheld on grounds of confidentiality (see Judgment 2229, under 3(b)).
As the Organization points out, there may indeed be some special cases in which a higher interest stands in the way of the disclosure of certain documents. But such disclosure may not be refused merely in order to strengthen the position of the Administration or one of its officers (see Judgment 1756, under 10)."
Reference(s)
ILOAT Judgment(s): 1756, 2229
Keywords:
case law; confidential evidence; decision; disclosure of evidence; duty to inform; exception; general principle; grounds; organisation's duties; organisation's interest; purpose; refusal;
Judgment 2693
104th Session, 2008
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 2
Extract:
"The Tribunal's judgments have the authority of res judicata. They will be reviewed only in exceptional circumstances and on limited grounds. These grounds include the discovery of a new fact. A new fact is a fact on which the party claiming it was unable to rely through no fault of its own; it must be a material fact likely to have a bearing on the outcome of the case (see Judgments 748, under 3, 1294, under 2, 1504, under 8 and 2270, under 2)."
Reference(s)
ILOAT Judgment(s): 748, 1294, 1504, 2270
Keywords:
admissible grounds for review; application for review; condition; definition; exception; iloat; judgment of the tribunal; limits; misconduct; new fact on which the party was unable to rely in the original proceedings; res judicata;
Judgment 2690
104th Session, 2008
Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 10
Extract:
The Commission adopted a directive stipulating that staff members appointed to the Professional and higher categories and internationally recruited staff should not, except in certain limited exceptions, remain in service for more than seven years. "The Tribunal cannot accept the complainant's argument regarding the legality of the Directive on the ground that the Preparatory Commission has established, almost from the very beginning of its existence, the non-career character of its functions. Its very nature of being a 'preparatory commission' for the Comprehensive Nuclear-Test-Ban Treaty Organization makes it obvious that the decision thus adopted was in perfect coherence with its own mandate, which is not of a permanent nature."
Keywords:
administrative instruction; contract; decision; exception; fixed-term; limits; non-local status; non-renewal of contract; organisation's interest; professional category; security of tenure; terms of appointment;
Judgment 2657
103rd Session, 2007
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
The complainant contests the decision not to appoint him to a post as examiner at the European Patent Office on the grounds that he did not meet the physical requirements for the post. The Organisation submits that the Tribunal is not competent to hear complaints from external applicants for a post in an organisation that has recognised its jurisdiction. "However regrettable a decision declining jurisdiction may be, in that the complainant is liable to feel that he is the victim of a denial of justice, the Tribunal has no option but to confirm the well-established case law according to which it is a court of limited jurisdiction and 'bound to apply the mandatory provisions governing its competence', as stated in Judgment 67, delivered on 26 October 1962. [...]
It [can be inferred from Article II of the Statute of the Tribunal] that persons who are applicants for a post in an international organisation but who have not been recruited are barred from access to the Tribunal. It is only in a case where, even in the absence of a contract signed by the parties, the commitments made by the two sides are equivalent to a contract that the Tribunal can decide to retain jurisdiction (see for example Judgment 339). According to Judgment 621, there must be 'an unquestioned and unqualified concordance of will on all terms of the relationship'. That is not the case, however, in the present circumstances: while proposals regarding an appointment were unquestionably made to the complainant, the defendant was not bound by them until it had established that the conditions governing appointments laid down in the regulations were met."
Reference(s)
ILOAT reference: Article II of the Statute
ILOAT Judgment(s): 67, 339, 621
Keywords:
appointment; candidate; case law; competence of tribunal; complaint; condition; consequence; contract; declaration of recognition; definition; exception; external candidate; formal requirements; grounds; handicapped person; iloat statute; intention of parties; interpretation; medical examination; medical fitness; open competition; organisation; post; proposal; provision; refusal; terms of appointment; vested competence; written rule;
Judgment 2656
103rd Session, 2007
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
The complainant submits that the disciplinary measure imposed on him lacks proportionality. "In this respect, it may be noted that lack of proportionality is to be treated as an error of law warranting the setting aside of a disciplinary measure even though a decision in that regard is discretionary in nature (see Judgments 203 and 1445). In determining whether disciplinary action is disproportionate to the offence, both objective and subjective features are to be taken into account and, in the case of dismissal, the closest scrutiny is necessary (see Judgment 937)."
Reference(s)
ILOAT Judgment(s): 203, 937, 1445
Keywords:
breach; decision quashed; disciplinary measure; discretion; exception; judicial review; misconduct; proportionality; termination of employment;
Judgment 2639
103rd Session, 2007
World Trade Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"Both under the UN Staff Rules and the WTO Staff Rules, the Organization recognises only one nationality for each staff member; a staff member's nationality is determined at the time of appointment and a staff member's home is deemed to be in the country of which the staff member is a national, unless there are compelling reasons to make an exception."
Keywords:
appointment; date; exception; grounds; home; nationality; official; place of origin; rule of another organisation; staff regulations and rules;
Judgment 2637
103rd Session, 2007
World Trade Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 22
Extract:
The complainant requests that the effective date of the administration's decision to grant her international status be changed to December 1991 instead of August 2005. "[I]t may be noted that, exceptionally, retroactive effect may be granted to a decision where the effect is favourable to a staff member (see Judgment 1130). In the present case, however, a grant of retroactivity would confer no benefit on the complainant either in relation to home leave or education grant. In the circumstances, the rule against retroactivity should be applied."
Reference(s)
ILOAT Judgment(s): 1130
Keywords:
allowance; amendment to the rules; claim; date; decision; education expenses; effect; enforcement; exception; general principle; home leave; non-local status; non-retroactivity; official; staff member's interest; withdrawal of decision;
Judgment 2619
103rd Session, 2007
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"The decision to grant special leave must be made on a case-by-case basis. It is not possible to assume that, because special leave has been granted to one staff member, it must be granted to all, unless all cases are identical in fact and in law. [...] Discrimination cannot be established until it is proved that staff members in identical situations were treated differently."
Keywords:
breach; difference; discretion; equal treatment; evidence; exception; official; organisation's duties; same; special leave;
Judgment 2584
102nd Session, 2007
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 13
Extract:
The Organization contends that the complainant had until 22 September 2003 to submit his notice of appeal. As it was submitted on 2 October, UNESCO considers that it was filed outside the time limit set down in the Statutes of the Appeals Board. The Tribunal notes that a memorandum of 5 September 2003 informed the complainant that the administration would contact him with a view to reaching an amicable settlement. "If an organisation invites settlement discussions or, even, participates in discussions of that kind, its duty of good faith requires that, unless it expressly states otherwise, it is bound to treat those discussions as extending the time for the taking of any further step. That is because settlement discussions must proceed on the basis that no further step will be necessary. Where, as here, there has been no actual decision but the Organization has invited settlement discussions, the duty of good faith requires it to treat the time for taking a further step as running from the termination of those discussions and not from some earlier date identifiable as the date of an implied negative decision. That is because the invitation necessarily implies that, no matter what the Staff Regulations or Staff Rules provide, no final decision has been or will be taken during the course of discussions."
Keywords:
absence of final decision; breach; consequence; date; decision; exception; extension of contract; good faith; implied decision; internal appeal; internal appeals body; new time limit; organisation's duties; participation; procedure before the tribunal; proposal; provision; purpose; settlement out of court; staff regulations and rules; start of time limit; time limit; written rule;
Judgment 2549
101st Session, 2006
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 10, 11 and 13
Extract:
The complainant, a Danish national, was employed by the ILO from 3 January 2002 to 2 January 2005. She had entered into a registered partnership with her same-sex partner. On taking up her functions, she submitted a Certificate of Registered Partnership drawn up in accordance with the Danish Act on registered partnership and asked to be granted dependency benefits, designating her partner as her spouse. Her request was rejected. The Office stated that it was "in a position to recognise same-sex marriages immediately where the legislation of the country of the staff member's nationality recognises such marriages." It has in fact recently recognised such same-sex marriages where the national legislation defines same-sex marriages as spousal relationships.
"The question is whether the broad interpretation of the term 'spouse' already given by the Office in the case of a marriage recognised by the legislation of the country of the staff member's nationality should have been extended to unions between same-sex partners which are not expressly designated as marriages under the national law of the staff member concerned. The Tribunal feels that a purely nominalistic approach to this issue would be excessively formalistic and is inappropriate in view of the fact that the situation varies from one country to another and that great care must be taken not to treat officials placed in comparable situations unequally: it is not because a country has opted for legislation that admits same-sex unions while refusing to describe them as marriages that officials who are nationals of that State should necessarily be denied certain rights. As pointed out in Judgment 1715 [...], there may be situations in which the status of spouse can be recognised in the absence of a marriage, provided that the staff member concerned can show the precise provisions of local law on which he or she relies. It is therefore necessary to determine whether in the present case the provisions of Danish law enable the complainant and her partner to be considered as 'spouses' in the meaning of the applicable regulations."
After having examined the provisions of the Danish Act on registered partnership, the Tribunal finds that "the Director-General was wrong [...] to refuse to recognise the status of spouse for the complainant's partner [and orders] the ILO [to] give full effect to this ruling by granting the complainant the benefits denied to her during the time of her employment".
Reference(s)
ILOAT Judgment(s): 1715
Keywords:
analogy; applicable law; burden of proof; condition; consequence; contract; declaration of recognition; definition; dependant; difference; domestic law; equal treatment; exception; executive head; family allowance; interpretation; judicial review; marital status; member state; nationality; official; provision; refusal; request by a party; right; same-sex marriage; social benefits; status of complainant;
Judgment 2525
100th Session, 2006
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
The defendant sent the President of the Tribunal a letter requesting permission to confine its reply to the issue of the complaint's receivability. "For the sake of the good administration of justice [...] the President, who is authorised to direct proceedings (see Judgment 809), decided exceptionally to grant the Organization's request to confine its reply to the issue of receivability."
Reference(s)
ILOAT Judgment(s): 809
Keywords:
discretion; exception; president of the tribunal; reply confined to receivability;
Judgment 2513
100th Session, 2006
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 10
Extract:
The Deputy Director General submitted a memorandum requesting one-year extensions of contract for the complainant and six other officials who had reached the statutory age of retirement. The Director General dealt with all seven requests. Three were granted. In the complainant's case, the request for extension was simply turned down without any reason being given. The Tribunal recalls its case-law according to which a provision such as Staff Regulation 4.05 gives the Director General a wide measure of discretion and the Tribunal will not interfere in the exercise of that discretion except in extremely limited circumstances. The Tribunal recently confirmed as much in Judgment 2377, which also concerns the IAEA retirement policy. That case is not authority, however, for the proposition that the power to extend appointments beyond normal retirement age can be exercised arbitrarily. In the present case, "[i]t is impossible to conclude other than that the decision in the complainant's case was made for some undisclosed or purely arbitrary reason. Therefore, it cannot stand."
Reference(s)
Organization rules reference: IAEA Staff Regulation 4.05
ILOAT Judgment(s): 2377
Keywords:
age limit; bias; case law; decision; discretion; duty to substantiate decision; equal treatment; exception; grounds; judicial review; limits; organisation's duties; retirement; staff regulations and rules;
Consideration 11
Extract:
"The Tribunal notes [...] that in the absence of special circumstances such as a compelling need to preserve confidentiality, internal appellate bodies such as the [Joint Appeals Board] must strictly observe the rules of due process and natural justice and that those rules normally require a full opportunity for interested parties to be present at the hearing of witnesses and to make full answer in defence."
Keywords:
adversarial proceedings; applicable law; confidential evidence; due process; exception; general principle; internal appeals body; organisation's duties; procedure before the tribunal; right to reply; testimony;
Judgment 2394
98th Session, 2005
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
"Since he partially succeeds, the complainant is entitled to costs, which he may claim directly before the Tribunal, contrary to the defendant's plea".
Keywords:
claim; complainant; costs; exception; internal remedies exhausted; receivability of the complaint; right;
Judgment 2389
98th Session, 2005
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
The home country "is not necessarily that of the staff member's nationality. It could be the country with which he has the closest connection outside the country in which he is employed (see Judgment 1985, under 9), for instance the home country of his wife or of children whom he may have adopted or taken in but who he believes should keep up their connections with their native environment. Thus, according to Staff Rule 105.3, paragraph 4c, the Director General, in exceptional circumstances, may authorise a staff member to take home leave in a country other than the country of his nationality, provided that the latter can show that he maintained his normal residence in that other country for a prolonged period preceding his appointment, that he continues to have close family or personal ties in that country and that his taking home leave there would not be inconsistent with the purpose and intent of Staff Regulation 5.3."
Reference(s)
Organization rules reference: UPU Staff Regulation 5.3 and Staff Rule 105.3, paragraph 4c
ILOAT Judgment(s): 1985
Keywords:
adoption; appointment; burden of proof; condition; definition; dependent child; difference; duty station; exception; executive head; family relationship; home leave; nationality; official travel; period; place of origin; residence; staff regulations and rules;
Judgment 2370
97th Session, 2004
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 18
Extract:
The complainant submitted a grievance alleging moral harassment to the Joint Panel. The Tribunal considers that "the Joint Panel's conclusions were not based on all the circumstances which should have been taken into consideration in order to enable the deciding authority to take a decision in full knowledge of the facts. The Director General's decision [...], informing the complainant that, since the Joint Panel had reached the conclusion 'that the various aspects of [her] supervisor's conduct [did] not constitute harassment' the Office could not allow her 'harassment claim', must therefore be set aside and the case must be sent back to the Organization and referred again to the Joint Panel, unless a settlement is reached between the complainant and the Office."
Keywords:
claim; conduct; decision; disregard of essential fact; exception; executive head; internal appeal; internal appeals body; refusal; settlement out of court; supervisor;
Judgment 2357
97th Session, 2004
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 10
Extract:
"Where a person seeks to bring himself or herself within an exception to a general rule - here, the rule that an education allowance is not payable to persons serving in their own country - it is for that person to establish that he or she falls within the exception."
Keywords:
allowance; burden of proof; condition; duty station; education expenses; exception; nationality; official; written rule;
Judgment 2315
96th Session, 2004
Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 25
Extract:
The Commission adopted a directive stipulating that staff members appointed to the Professional and higher categories and internationally recruited staff should not, except in certain limited exceptions, remain in service for more than seven years. "A change in the nature of the discretion to be exercised in determining whether to grant future rights by the extension or renewal of a contract cannot be said to effect a change in an existing legal interest, much less in an existing legal right or existing legal status. Accordingly, the seven year policy embodied in [the] directive [...] is not retroactive even if the seven year period is computed from a time prior to the proclamation of that policy."
Keywords:
amendment to the rules; appointment; career; consequence; contract; date; decision; discretion; exception; extension of contract; general principle; limits; non-local status; official; organisation; period; professional category; publication; reckoning; right; staff member's interest; status of complainant; terms of appointment; written rule;
Consideration 17
Extract:
The Commission adopted a directive stipulating that staff members appointed to the Professional and higher categories and internationally recruited staff should not, except in certain limited exceptions, remain in service for more than seven years. In accordance with this directive, the complainant's contract was not renewed. "Much of the complainant's argument is directed to the proposition that the Commission cannot secure services of the standard specified in [Staff] Regulation 4.2 if it cannot retain those services beyond seven years, particularly as it has to compete for staff with other international organisations. That proposition is not self-evidently correct. Nor is it established by pointing, as the complainant does in his submissions, to international organisations which have a similar policy and which, according to the complainant, have or may have had difficulties in recruiting and retaining suitable staff. Moreover, [...] exceptions [are allowed] in the case of a need to retain 'essential expertise or memory in the Secretariat' ensures that, to that extent, its staffing needs can be satisfied."
Reference(s)
Organization rules reference: CTBTO PrepCom's Staff Regulation 4.2
Keywords:
appointment; career; contract; enforcement; exception; general principle; lack of evidence; limits; non-local status; non-renewal of contract; official; organisation; professional category; qualifications; safeguard; staff regulations and rules; terms of appointment; written rule;
Considerations 22-23
Extract:
"There are two aspects to the rule against retroactivity. The first is a rule of interpretation which requires that a provision not be construed as having retroactive effect unless that is clearly intended. The second is a substantive rule of international civil service law which, as explained in Judgment 1589, prevents a retroactive change in the legal status of staff save in limited circumstances [...]. However, to state the rule in this way is not to expose what is meant by 'retroactive'. In general terms, a provision is retroactive if it effects some change in existing legal status, rights, liabilities or interests from a date prior to its proclamation, but not if it merely affects the procedures to be observed in the future with respect to such status, rights, liabilities or interests."
Reference(s)
ILOAT Judgment(s): 1589
Keywords:
amendment to the rules; case law; collective rights; condition; consequence; date; definition; effect; exception; general principle; international civil service principles; interpretation; non-retroactivity; official; organisation's interest; procedure before the tribunal; provision; publication; purpose; right; staff member's duties; staff member's interest;
Consideration 20
Extract:
The Commission adopted a directive stipulating that staff members appointed to the Professional and higher categories and internationally recruited staff should not, except in certain limited exceptions, remain in service for more than seven years. In accordance with this directive, the complainant's contract was not renewed. "Although the embodiment of the seven year policy in [the] directive may properly be viewed as the prescribing of a term or condition upon which fixed-term contracts may be granted, it does not itself operate as the imposition of that term or condition. To be effective, a term or condition of the kind now in question must be incorporated in the contract, even if only by reference: a reference to the Staff Regulations and Rules is not sufficient because they do not incorporate the [...] directive in question. By implementing the seven year policy in the way that he purported to do in the present case, the Executive Secretary was attempting to enforce a term or condition that was not incorporated in the contract between the complainant and the Preparatory Commission."
Keywords:
appointment; career; complainant; condition; contract; effect; enforcement; exception; executive head; fixed-term; general principle; limits; non-local status; non-renewal of contract; official; organisation; professional category; staff regulations and rules; terms of appointment; written rule;
Judgment 2306
96th Session, 2004
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 10-11
Extract:
"As a general rule, damages for breach of contract, including wrongful termination of a contract of employment, are confined to the amount necessary to put the injured party in the position he or she would have enjoyed if the contract had been performed. Thus, ordinarily, an employee is entitled, in the case of wrongful termination, to salary and entitlements only up to the date on which the contract would normally have expired. Of course, in some circumstances, material damage may extend beyond the salary and allowances that would otherwise have been paid during the course of the contract. Thus, for example, an employee may be entitled to additional compensation if it is shown that he or she lost a valuable chance of having the contract renewed or extended."
Keywords:
abuse of power; allowance; amount; compensation; contract; evidence; exception; extension of contract; general principle; injury; limits; material damages; material injury; misuse of authority; official; reconstruction of career; right; salary; termination of employment;
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