Breach (235,-666)
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Keywords: Breach
Total judgments found: 168
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Judgment 2924
109th Session, 2010
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"An error of reasoning establishes neither ill will nor a breach of the duty of care, particularly when the actual decision is correct."
Keywords:
breach; duty of care; duty to substantiate decision; mistaken conclusion; organisation's duties;
Judgment 2922
109th Session, 2010
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"[T]he procedure leading to titularisation was never undertaken in the case of the complainant. It may be concluded from the foregoing that the complainant did not have the status of an established official within the meaning of Article 2.1 of the [ILO] Staff Regulations. It follows that she is not justified in claiming that there has been a violation of the formal and procedural rules applicable to the termination of the appointment of an established official [...]."
Reference(s)
Organization rules reference: Article 2.1 of the ILO Staff Regulations
Keywords:
breach; formal flaw; formal requirements; procedural flaw; procedure before the tribunal; staff regulations and rules; status of complainant; termination of employment; titularization; written rule;
Judgment 2918
109th Session, 2010
International Federation of Red Cross and Red Crescent Societies
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"Article II, paragraph 5, of the Tribunal's Statute [...] provides that: 'The Tribunal shall also be competent to hear complaints alleging non-observance, in substance or in form, of the terms of appointment of officials and of provisions of the Staff Regulations of any [...] international organization [...] which has addressed to the Director-General a declaration, recognizing [...] the jurisdiction of the Tribunal for this purpose, as well as its Rules of Procedure, and which is approved by the Governing Body.' The consequence of that provision is that the Tribunal may hear the two complaints only if the complainant was, at the relevant times, an official of the [organization] and the [organization] has recognised the jurisdiction of the Tribunal."
Reference(s)
ILOAT reference: Article II, paragraph 5, of the Statute
Keywords:
breach; competence of tribunal; limits; status of complainant; terms of appointment;
Judgment 2912
109th Session, 2010
International Federation of Red Cross and Red Crescent Societies
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"The fact that the Staff Regulations of the Federation require express reference to terms of appointment, or to provisions of the Staff Rules or Staff Regulations for the filing of an internal appeal, does not exclude appeals based on a breach of general principles of law from the competence of the Joint Appeals Commission. An international organisation must comply with these principles, inter alia, in its relations with its staff and an internal appeal body is necessarily competent to review such compliance. [...] Article II, paragraph 5, of [the Tribunal's] Statute similarly stipulates that the Tribunal is competent to hear 'complaints alleging non-observance, in substance or in form, of the terms of appointment of officials [of the Federation] and of provisions of the Staff Regulations'. But naturally these provisions have never prevented the Tribunal from ruling on breaches of general principles of law."
Reference(s)
ILOAT reference: Article II, paragraph 5, of the Statute
Keywords:
breach; competence; competence of tribunal; complaint; condition; contract; formal flaw; general principle; iloat statute; internal appeal; internal appeals body; organisation's duties; provision; right; staff regulations and rules; working relations;
Judgment 2899
108th Session, 2010
European Free Trade Association
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 29
Extract:
The complainant refused to accede to EFTA's request for reimbursement of an amount allegedly overpaid.
"Contrary to his submissions, the complainant could not refuse [...] to comply with the Association's express and repeated requests for reimbursement. As the internal appeal procedure does not have a suspensory effect, and even though [EFTA] would no doubt have been wiser to await its completion before demanding payment of the debt, he was bound to comply with these requests. His refusal to accede to them thus constituted misconduct which could lead to a disciplinary sanction [...]."
Keywords:
breach; condition; disciplinary measure; internal appeal; procedure before the tribunal; recovery of overpayment; refund; refusal; request by a party; staff member's duties; suspensory effects;
Consideration 23
Extract:
"By [...] basing his decision on an essential document without having given the person concerned an opportunity to refute its content, the competent authority breached the right to be heard which every staff member possesses and his decision was thus tainted by a major procedural flaw (in this connection, see for example Judgments 69, under 2, and 1881, under 18 to 20)."
Reference(s)
ILOAT Judgment(s): 69, 1881
Keywords:
breach; confidential evidence; disclosure of evidence; official; procedural flaw; right to reply;
Judgment 2893
108th Session, 2010
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
The complainant submits that in reaching its opinion the Joint Committee for Disputes did not afford him due process since he was not given an opportunity to put his case himself, or to present oral submissions through counsel, and that he was thus denied the opportunity to exercise his right to be heard.
"This line of argument is unfounded. Neither the legal provisions governing Eurocontrol's Joint Committee for Disputes nor the general principles applicable to such an appeal body require that a complainant be given an opportunity to present oral submissions in person or through a representative. As the Tribunal has already had occasion to state in Judgment 623, all that the right to a hearing requires is that the complainant should be free to put his case, either in writing or orally; the appeal body is not obliged to offer him both possibilities. As the Committee considered that it had gleaned sufficient information about the case from the parties' written submissions and documentary evidence, it was under no obligation to invite the complainant to put his case orally, or indeed to accede to any request to that effect (for similar cases, see Judgments 232, 428 and 1127). Moreover, the Tribunal notes that in this case the complainant did not indicate in his internal complaint, or subsequently announce, that he wished to present oral submissions to the Committee and that, contrary to his assertions, the Agency was under no duty to inform him expressly of the possibility of making such a request."
Reference(s)
ILOAT Judgment(s): 232, 428, 623, 1127
Keywords:
breach; condition; counsel; elements; flaw; general principle; internal appeal; internal appeals body; no provision; oral proceedings; organisation's duties; report; request by a party; right to reply;
Judgment 2884
108th Session, 2010
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 19
Extract:
"As the Internal Appeals Committee erred in law in finding that it was not necessary to include the use of an assessment centre in the vacancy notice, it follows that the President's decision endorsing this view involves an error of law. This error would ordinarily result in the impugned decision and the underlying selection procedure being set aside. However, having regard to the circumstances and the complainant's failure to demonstrate any link between the breach of the Service Regulations and the outcome of the process, the decision and the process will not be set aside. This should not be construed in any way as condoning the conduct of the EPO. In accordance with its power under Article VIII of the Statute, the Tribunal decides that the complainant is entitled to moral damages in the amount of 10,000 euros for the breach of the Service Regulations of the Office."
Reference(s)
ILOAT reference: Article VIII of the Statute
Keywords:
breach; competition; competition cancelled; discretion; flaw; moral injury; staff regulations and rules;
Considerations 13 and 16-18
Extract:
"The complainant submits that the selection procedure was flawed. The failure to indicate in the vacancy notice that there would be an individual assessment performed by a consulting firm and the failure to include the particular management skills that would be assessed by the firm constitute, in her view, a violation of Articles 2 and 5 of Annex II to the Service Regulations. She adds that it follows from the flaws in the notice that there was a lack of information concerning the kinds of tests the competition would be based on, as required by Annex II."
"The Tribunal considers that the Internal Appeals Committee erred in law in finding that the failure to indicate that an individual assessment would be performed by a third party in the vacancy notice did not constitute a breach of the applicable Service Regulations. In essence, the Committee found that, in view of the nature of the position being filled, the complainant's seniority and the widespread use being made of assessment centres, the complainant would have known that an assessment in such circumstances formed part of the selection procedure. The fundamental flaw in this reasoning is that these are irrelevant considerations in relation to the legal question as to whether the Service Regulations require the use of an assessment centre to be included in a vacancy notice."
"Article 2 of Annex II to the Service Regulations requires that a notice of competition must specify, among other things, "the kind of competition (whether on the basis of either qualifications or tests, or of both qualifications and tests)" and "where the competition is on the basis of tests, what kind they will be and how they will be marked"."
"As the individual assessment performed by the consulting firm was, at least in part, a testing mechanism, the failure to mention it in the vacancy notice constitutes a breach of Article 2 of Annex II."
Keywords:
breach; competition; flaw; organisation's duties; staff regulations and rules; vacancy notice;
Judgment 2882
108th Session, 2010
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"Although rules of procedure must be strictly complied with, they must not be construed too pedantically or set traps for staff members who are defending their rights. If these staff members break such a rule, the penalty must fit the purpose of the rule. Consequently, a staff member who appeals to the wrong body does not on that account forfeit the right of appeal (see Judgments 1734, under 3, and 1832, under 6). [...] The fact that an appeal is mistakenly submitted directly to the Appeal Board, as occurred in this case, cannot entail the irreceivability of the appeal. The Appeal Board has a duty to forward to the Director General any document which is intended for his attention and which has been sent to it in error, in order that it may be treated as a request for review."
Reference(s)
ILOAT Judgment(s): 1734, 1832
Keywords:
breach; due process; executive head; formal requirements; good faith; internal appeal; internal appeals body; interpretation; organisation's duties; proportionality; purpose; receivability of the complaint; right of appeal; staff member's duties; written rule;
Judgment 2878
108th Session, 2010
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
The complainant asks the Tribunal to quash the decision dismissing his appeal as irreceivable. He submits in particular that Staff Rule 212.02 is not applicable in his case because he was in the process of negotiating a new contract with the Organization and therefore the deadline should have been suspended. He also submits that there was a breach of the principles of good faith, of legitimate expectation, of the duty of care and of respect for dignity.
"[T]here was no reason why the complainant could not submit his request for review within the 60-day time limit provided for in Staff Rule 212.02, and withdraw it later if necessary. The Joint Appeals Board was correct in recommending that his appeal be dismissed as time-barred. So far as concerns the applicable time limits, there was no breach of the principles of good faith, legitimate expectation, respect for dignity, or duty of care. The complainant refers to Judgment 2584 [...]. However, [...] in the present case there was only one official communication from the Organization to the complainant between the date of the letter notifying him of the decision not to further extend his contract [...] and the date of his letter requesting the Director-General to review that decision [...]. This cannot be construed, as claimed by the complainant, as an initiation of settlement negotiations which could have suspended the time limit for submission of a request to review the decision."
Reference(s)
ILOAT Judgment(s): 2584, 2841
Keywords:
breach; delay; duty of care; good faith; internal appeal; non-renewal of contract; organisation's duties; proposal; respect for dignity; settlement out of court; staff regulations and rules; time limit;
Judgment 2868
108th Session, 2010
South Centre
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 28
Extract:
"The Centre [...] attempts to lend validity to the Executive Director's decision on the grounds of expediency and that the decision subsequently received the Board's approval. The Tribunal observes that the non-observance of a regulation cannot be grounded on expediency."
Keywords:
breach; provision; staff regulations and rules;
Judgment 2865
108th Session, 2010
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3
Extract:
"Administrative authorities and organs have a duty to ensure, without prompting, that their procedures are properly conducted. It cannot be argued that a staff member has breached the principle of good faith by failing to request that these procedures be expedited. Indeed, a host of reasons connected with the employment relationship may explain that person's reluctance to chase up the advisory or decision-making organ."
Keywords:
administrative delay; advisory body; breach; due process; executive body; general principle; good faith; grounds; internal appeals body; official; organisation's duties; request by a party; working relations;
Judgment 2847
107th Session, 2009
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
"The purpose of the family allowances which Eurocontrol pays to officials with dependent children is to contribute financially towards these children's maintenance, and the aim of the rule laid down in [Article 67(2) of the Staff Regulations], according to which the amount of these allowances must be reduced by the amount of allowances of the same kind paid from other sources, such as family allowances paid by a national authority, is to prevent two benefits from being granted concurrently for the same children, since this would plainly result in the unlawful enrichment of the recipient family.
In this regard, the fact that the [national authority] does not make payments to the official himself, but to his spouse (or, as in this case, his partner), is of course immaterial. If the two benefits in question are being paid for the maintenance of the same children, they cannot be drawn simultaneously by the parents without contravening the very purpose of this rule against concurrent benefits."
Reference(s)
Organization rules reference: Article 67(2) of the Staff Regulations governing officials of the Eurocontrol Agency
Keywords:
accumulation; amount; breach; dependent child; domestic law; family allowance; marital status; parent; purpose; rate; staff regulations and rules; unjust enrichment; written rule;
Consideration 19
Extract:
The complainant received family allowances paid at the full rate by Eurocontrol in respect of his three children but did not declare to the Agency that his partner was drawing family allowances from the competent national social security authority. According to Article 67(2) of the Staff Regulations, the amount of family allowances that Eurocontrol was paying him should have been reduced by the amount of the family allowances received by his partner. The complainant objects to the fact that the Agency has recovered the amount overpaid from the outset, i.e. over a five-year period, whereas in the opposite case, when the Agency makes a mistake to the detriment of an official, it usually benefits from rules of prescription which enable it greatly to reduce the amounts reimbursed.
"[A]ccording to the Tribunal's case law, a claim for recovery of undue payment is not imprescriptible and must be brought - even in the absence of any provision in writing to this effect - in reasonable time (see Judgments 53, under 4, and 2565, under 7(c)). However [...] the five-year period concerned by the recovery of the overpayment [...] cannot be regarded in this case as an unreasonable length of time, particularly because the disputed reimbursement arises from concealment on the part of the complainant and because Eurocontrol did not fail to take the necessary steps to recover the sums in question."
Reference(s)
Organization rules reference: Article 67(2) of the Staff Regulations governing officials of the Eurocontrol Agency
ILOAT Judgment(s): 53, 2565
Keywords:
accumulation; amount; breach; case law; dependent child; difference; domestic law; family allowance; injury; limits; misrepresentation; no provision; organisation's duties; payment; period; rate; reasonable time; recovery of overpayment; request by a party; staff member's duties; staff regulations and rules; time bar;
Consideration 17
Extract:
The complainant received family allowances paid at the full rate by Eurocontrol in respect of his three children but did not declare to the Agency that his partner was drawing family allowances from the competent national social security authority. According to Article 67(2) of the Staff Regulations, the amount of family allowances that Eurocontrol was paying him should have been reduced by the amount of the family allowances received by his partner. The complainant had to reimburse the full amount overpaid.
"The evidence on file shows that the complainant deliberately refrained from declaring to Eurocontrol the family allowances drawn by his partner, although he had been duly informed that, in the Agency's view, they should be deducted from those he was receiving. While it was open to the complainant to challenge - if necessary before the Tribunal - any deductions made by the Agency in calculating the payments, he could not choose of his own accord to evade his duty of disclosure. He must therefore be deemed to have been aware of the unlawfulness of the disputed payments, which was indeed sufficiently obvious for it to be concluded that he could not have been unaware of it."
Reference(s)
Organization rules reference: Article 67(2) of the Staff Regulations governing officials of the Eurocontrol Agency
Keywords:
accumulation; amount; breach; dependent child; domestic law; family allowance; flaw; misrepresentation; payment; rate; reckoning; recovery of overpayment; staff member's duties; staff regulations and rules;
Judgment 2837
107th Session, 2009
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 7-8
Extract:
The complainant was not granted the personal promotion she was eligible for and the Organization did not respect its obligation to publish the list of officials who were granted such a promotion.
"Contrary to the Organization, which maintains that its failure to publish the list could not have caused any injury to the complainant and in no way influenced the decision to refuse her such a promotion, the Tribunal considers that non publication of the list in question deprived the complainant of information that she might have found useful in filing a request for review [...].
The impugned decision must therefore be set aside [...], and the case must be referred back to the Organization so that it may publish the list of officials who were granted a personal promotion [...]. The complainant may, if she so wishes, file a request for review within a fixed period from the date of publication of the list in question."
Keywords:
breach; consequence; organisation's duties; personal promotion; publication; refusal; time limit; written rule;
Judgment 2835
107th Session, 2009
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"It is well established that an organisation has a wide discretion in relation to the appointment and promotion of staff. For this reason, these decisions are subject to limited review. That is, the Tribunal will only interfere if the decision was taken without authority; if it was based on an error of law or fact, some material fact was overlooked, or a plainly wrong conclusion was drawn from the facts; if it was taken in breach of a rule of form or of procedure; or if there was an abuse of authority (see Judgments 2060, under 4, and 2457, under 6)."
Reference(s)
ILOAT Judgment(s): 2060, 2457
Keywords:
breach; discretion; judicial review; limits; promotion;
Judgment 2834
107th Session, 2009
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
"It is well established that an organisation has a wide discretion in relation to the appointment and promotion of staff. For this reason, these decisions are subject to limited judicial review. That is, the Tribunal will only interfere if the decision was taken without authority; if it was based on an error of law or fact, a material fact was overlooked, or a plainly wrong conclusion was drawn from the facts; if it was taken in breach of a rule of form or of procedure; or if there was an abuse of authority (see Judgments 2060, under 4, and 2457, under 6)."
Reference(s)
ILOAT Judgment(s): 2060, 2457
Keywords:
appointment; breach; discretion; judicial review; limits; promotion;
Judgment 2786
106th Session, 2009
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 15
Extract:
"It is not open to an international organisation to justify a decision by conducting further enquiries after the internal appeal proceedings have been concluded, much less by conducting enquiries into a charge of misconduct that was not relied upon as the basis for rejecting an internal appeal. So to do is not only to deprive a person of his/her right to be heard in answer to a charge of misconduct, including by testing the evidence against him/her, but also to render the appeal proceedings futile."
Keywords:
breach; decision; evidence; grounds; inquiry; internal appeal; investigation; organisation's duties; refusal; right to reply; serious misconduct;
Judgment 2782
106th Session, 2009
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
In order to execute Judgment 2560 the Organisation paid salary arrears not only to the officials who had filed the complaints that led to that judgment, but also to all other members of staff and to all former members of staff in receipt of a retirement pension.
"It is not disputed that only the parties to the proceedings leading to the delivery of Judgment 2560 could seek its enforcement. But this does not mean that that judgment remains without effect for staff members who, although they did not participate in those proceedings, are de facto in a situation identical to that of colleagues who did. It is clear from Judgment 2560 that the Organisation breached the provisions of the Staff Regulations by not taking any measure to adjust salaries and pensions for the period under consideration. Staff members who were not party to the proceedings are entitled, for the same reasons as those stated in the judgment, to receive the salary arrears paid to the staff members who participated in those proceedings, provided that they are in the same situation.
Consequently, in deciding to extend the scope of Judgment 2560 to all serving or retired members of staff, the Organisation [...] perform[ed] a legal obligation."
Reference(s)
ILOAT Judgment(s): 2560
Keywords:
adjustment; breach; complainant; effect; execution of judgment; grounds; limits; organisation's duties; payment; pension; purport; res judicata; retirement; right; salary; same cause of action; staff regulations and rules;
Judgment 2751
105th Session, 2008
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
"The intention with which a statement is made is not necessarily determinative of the question whether a statement that is wholly irrelevant is also one that can serve no proper purpose." The complainant represented three colleagues whose complaints were considered by the Tribunal in Judgment 2514. In its replies the Organisation had stated that, by reason of the time he had spent providing legal assistance to staff members, the complainant's work as an examiner had been less satisfactory than it should have been. "That was defamatory. It was also inconsistent with the duty of the EPO to respect the complainant's dignity. In the context of the other comments that were within the limits of the privilege that attaches to proceedings before the Tribunal, it carried the threat of possible administrative consequences for the complainant's employment. Such a remark can serve no proper purpose. Accordingly, it was not privileged and the complainant is entitled to seek relief with respect to it."
Reference(s)
ILOAT Judgment(s): 2514
Keywords:
breach; compensation; consequence; counsel; iloat; intention of parties; organisation; organisation's duties; privileges and immunities; procedure before the tribunal; purpose; request by a party; respect for dignity; right; security of tenure; staff representative;
Considerations 3 and 6
Extract:
"Statements made in legal proceedings are privileged, whether those statements are made in writing in the pleadings or orally in the course of a hearing. The consequence is that, even if defamatory, they cannot be the subject of legal proceedings or sanction. The privilege, sometimes referred to as 'in court privilege', exists, not for the benefit of the parties or their representatives, but because it is necessary for the proper determination of proceedings and the issues that arise in their course. In Judgment 1391 the Tribunal recognised that the privilege attaches to its proceedings, as well as those of internal appeal bodies. [...]
[T]he Tribunal's consideration of the extent of the privilege that attaches to statements made in the course of internal appeal proceedings or proceedings before the Tribunal has concentrated on statements made by staff members. However, the privilege is the same in the case of statements made by or on behalf of defendant organisations, and they must be allowed a similar degree of freedom in what they say and the manner of its expression. Even so, a statement will constitute a perversion of a defendant organisation's right of reply if it is wholly irrelevant and it can only serve an improper purpose."
Reference(s)
ILOAT Judgment(s): 1391
Keywords:
abuse of power; breach; confidential evidence; consequence; disciplinary measure; formal requirements; freedom of speech; iloat; internal appeals body; judicial review; language; misuse of authority; official; oral proceedings; organisation; privileges and immunities; procedure before the tribunal; purpose; reply; respect for dignity; right; settlement out of court;
Judgment 2747
105th Session, 2008
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 14
Extract:
The complainant alleges that the regulations governing the creation of posts - in particular Regulation 2.2 of the Staff Regulations and Article 102.6.15 of the General Regulations of the UPU - have been violated. "[T]he Tribunal notes [...] that the complainant is entitled to rely on all the provisions of the General Regulations and Staff Regulations, including those which primarily concern relations between the Council of Administration and the Director General insofar as a breach of these provisions may affect his personal situation."
Reference(s)
Organization rules reference: Staff Regulation 2.2 and Article 102.6.15 of the General Regulations of the UPU
Keywords:
breach; consequence; creation of post; executive body; executive head; injury; provision; right; staff regulations and rules; written rule;
Judgment 2745
105th Session, 2008
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 13
Extract:
"'Constructive dismissal' is a phrase used to signify that an organisation has breached the terms of a staff member's contract in such a way as to indicate that it will no longer be bound by that contract."
Keywords:
breach; condition; contract; definition; implied decision; official; organisation; termination of employment;
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