TERMS OF APPOINTMENT
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Keywords: TERMS OF APPOINTMENT
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Judgment 2230
95th session, 2003
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 13
Extract:
THE COMPLAINANT CLAIMS THAT A PAYMENT MADE TO HIM BY MISTAKE SHOULD NOT HAVE BEEN RECOVERED FROM HIM THREE YEARS LATER. "WHILE IT IS A GENERAL PRINCIPLE OF LAW THAT LAPSE OF TIME MAY EXTINGUISH AN OBLIGATION, THE COMPLAINANT HAS NOT CITED ANY PROVISION RELATIVE TO RECOVERY OF OVERPAYMENTS [...] ESTABLISHING A PRESCRIPTIVE PERIOD BEYOND WHICH THE UNDUE PAYMENTS MAY NO LONGER BE RECOVERED."
Keywords:
definition; discontinuance; general principle; material error; payment; period; provision; recovery of overpayment; request; right;
Judgment 2229
95th session, 2003
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 3 A)
Extract:
"A TRANSFER OF A NON-DISCIPLINARY NATURE IS SUBJECT TO THE GENERAL PRINCIPLES GOVERNING ALL DECISIONS AFFECTING AN OFFICIAL'S STATUS. IT MUST SHOW DUE REGARD, IN BOTH FORM AND SUBSTANCE, FOR THE DIGNITY OF THE OFFICIAL CONCERNED, PARTICULARLY BY PROVIDING HIM WITH WORK OF THE SAME LEVEL AS THAT WHICH HE PERFORMED IN HIS PREVIOUS POST AND MATCHING HIS QUALIFICATIONS (SEE, FOR EXAMPLE, JUDGMENTS 1496, 1556, 1972 [...]). THE TRANSFER MAY BE MOTIVATED BY THE NEED TO ELIMINATE TENSIONS COMPROMISING THE FUNCTIONING OF A DEPARTMENT (SEE, FOR EXAMPLE, JUDGMENTS 132, 1018 AND 1972)."
Reference(s)
ILOAT Judgment(s): 132, 1018, 1496, 1556, 1972
Keywords:
assignment; case law; complaint allowed; complaint allowed in part; decision; discontinuance; effect; formal requirements; general principle; grade; grounds; international civil servant; organisation's duties; organisation's interest; post; post held by complainant; respect for dignity; same; status of complainant; transfer; working relations;
Consideration 3 (A)
Extract:
"ACCORDING TO THE TRIBUNAL'S CASE LAW, TRANSFER DECISIONS, WHICH HAVE BEEN INITIATED BY THE ADMINISTRATION AND NOT AT THE STAFF MEMBER'S REQUEST, MAY BE DISCIPLINARY, NON-DISCIPLINARY (IN THE INTERESTS OF THE ORGANISATION, INDEPENDENTLY OF ANY FAULT) OR EVEN MIXED IN NATURE. [...] A TRANSFER DICTATED BY THE INTERESTS OF THE ORGANISATION BUT WHICH IS ALSO DISCIPLINARY IN NATURE MUST CLEARLY ALSO COMPLY WITH THE SPECIFIC RULES PROTECTING STAFF MEMBERS IN THE CASE OF DISCIPLINARY DECISIONS (SEE JUDGMENT 1929 [...])."
Reference(s)
ILOAT Judgment(s): 1929
Keywords:
case law; complaint allowed; complaint allowed in part; decision; disciplinary measure; formal requirements; international civil servant; organisation's duties; organisation's interest; safeguard; transfer;
CONSIDERATION 3 A)
Extract:
"A TRANSFER OF A DISCIPLINARY NATURE MUST AFFORD THE STAFF MEMBER THE SAFEGUARDS AVAILABLE IN THE CASE OF DISCIPLINARY SANCTIONS, THAT IS THE RIGHT TO BE HEARD BEFORE THE SANCTION IS ORDERED, WITH THE OPPORTUNITY FOR THE STAFF MEMBER CONCERNED TO PARTICIPATE IN THE FULL PROCESSING OF THE EVIDENCE AND TO MAKE ALL HIS PLEAS. IT MATTERS LITTLE IN THIS RESPECT WHETHER OR NOT TRANSFER IS ENVISAGED AMONGST THE DISCIPLINARY SANCTIONS SET OUT IN THE STAFF REGULATIONS. WHAT IS DECISIVE IS WHETHER THE TRANSFER APPEARS TO BE THE CONSEQUENCE OF ALLEGED PROFESSIONAL SHORTCOMINGS [...] WHICH MAY [...] GIVE RISE TO DISCIPLINARY SANCTIONS (SEE JUDGMENTS 1796, 1929 UNDER 7, 1972 UNDER 3 AND 4, AND THE CASES CITED THEREIN)."
Reference(s)
ILOAT Judgment(s): 1796, 1929, 1972
Keywords:
case law; complaint allowed; complaint allowed in part; consequence; disciplinary measure; disclosure of evidence; evidence; formal requirements; international civil servant; misconduct; organisation's duties; participation; right to reply; safeguard; staff regulations and rules; transfer;
Judgment 2228
95th session, 2003
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 11
Extract:
THE STAFF COMMITTEE, WHICH IS A STATUTORY BODY OF THE ORGANISATION, MADE THE FACILITIES DERIVED FROM ITS ACCESS TO THE ORGANISATION'S INTERNAL ELECTRONIC MAIL SYSTEM AVAILABLE TO THE STAFF UNION. ITS ACCESS TO THE SYSTEM WAS WITHDRAWN. "THE ORGANISATION [SUBMITS THAT] THE FACILITIES OFFERED TO THE STAFF COMMITTEE CANNOT BE MADE AVAILABLE TO THE STAFF UNION WITHOUT CREATING CONFUSION WITH REGARD TO THE ATTRIBUTION OF ROLES AND RESPONSIBILITIES, EVEN IF THOSE IN CHARGE OF ONE OF THESE BODIES ARE ALSO, OR MAY BE, IN CHARGE OF THE OTHER. THIS DOES NOT MEAN TO SAY THAT THE UNIONS SHOULD NOT BE PROVIDED WITH CERTAIN FACILITIES BY THE ORGANISATIONS. ON THE CONTRARY, THEIR FREEDOM OF EXPRESSION SHOULD NOT BE HAMPERED, AS INDICATED BY THE TRIBUNAL IN JUDGMENT 1547, [...] AND UNIONS MUST CLEARLY BE PROVIDED WITH SUFFICIENT FACILITIES, WITHIN THE FRAMEWORK OF NEGOTIATED AGREEMENTS OR, IF NEED BE, ADMINISTRATIVE REGULATIONS, TO ENABLE THEM TO CARRY ON THEIR ACTIVITIES. IT IS LEGITIMATE, HOWEVER, FOR THE ORGANISATION TO ENSURE THAT THE FACILITIES MADE AVAILABLE TO A BODY OFFICIALLY REPRESENTING THE STAFF AS A WHOLE ARE NOT MISUSED FOR THE BENEFIT OF A UNION, OR ANY OTHER BODY HAVING ITS OWN ASSETS AND REPRESENTING ONLY PART OF THE STAFF."
Reference(s)
ILOAT Judgment(s): 1547
Keywords:
administrative instruction; case law; collective bargaining; facilities; freedom of speech; grounds; liability; limits; organisation's duties; purpose; refusal; staff representative; staff union; staff union activity; staff union agreement; written rule;
CONSIDERATION 11
Extract:
THE STAFF COMMITTEE'S ACCESS TO THE ORGANISATION'S INTERNAL ELECTRONIC MAIL SYSTEM WAS WITHDRAWN AFTER THE ORGANISATION MADE AN OBJECTION ON TECHNICAL GROUNDS FOLLOWING THE MASS DISTRIBUTION OF DOCUMENTS. "THE STAFF COMMITTEE IS RESPONSIBLE FOR [...] MAINTAINING "SUITABLE CONTACTS BETWEEN THE COMPETENT ADMINISTRATIVE AUTHORITIES AND THE STAFF", WHICH NECESSARILY IMPLIES THE AVAILABILITY OF ADEQUATE MEANS OF COMMUNICATION WITHIN THE ORGANISATION... NEVERTHELESS, THE INCIDENT MENTIONED BY THE [ORGANISATION] INVOLVING THE MASS DISTRIBUTION OF A UNION REPORT [...] SHOWS THAT SOME DEGREE OF CONTROL IS NECESSARY, WITHOUT JEOPARDISING THE STAFF COMMITTEE'S FREEDOM OF EXPRESSION AND SPEECH."
Keywords:
acceptance; consequence; facilities; freedom of speech; international civil servant; liability; organisation; publication; purpose; rebuttal; refusal; report; staff union;
Judgment 2227
95th session, 2003
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 7
Extract:
THE COMPLAINANT WAS INFORMED BY A LETTER OF 22 DECEMBER 1999 THAT THE ADMINISTRATION RESERVED THE RIGHT TO APPROVE THE PHOTOCOPYING AND DISTRIBUTION OF CIRCULARS ISSUED BY STAFF REPRESENTATIVES. "THE TRIBUNAL RECALLED, IN JUDGMENT 911 [...], THAT A STAFF ASSOCIATION ENJOYS BROAD FREEDOM OF SPEECH AND THE RIGHT TO TAKE TO TASK THE ADMINISTRATION OF THE ORGANISATION WHOSE EMPLOYEES IT REPRESENTS, BUT THAT LIKE ANY OTHER FREEDOM SUCH FREEDOM HAS ITS BOUNDS. THUS ANY ACTION THAT IMPAIRS THE DIGNITY OF THE INTERNATIONAL CIVIL SERVICE, AND LIKEWISE GROSS ABUSE OF FREEDOM OF SPEECH, ARE INADMISSIBLE. BUT THE PREVENTION OF SUCH ABUSE CANNOT GIVE THE ADMINISTRATION A POWER OF PRIOR CENSORSHIP OVER THE COMMUNICATION OF WRITTEN INFORMATION PRODUCED BY THE GROUPS AND ASSOCIATIONS CONCERNED. HEREIN LIES THE PROBLEM IN THIS CASE: THE OFFICE CONSIDERS IT HAS A GENERAL RIGHT TO AUTHORISE, WHICH IT MAINTAINS IT USES ONLY WITH MODERATION, BUT THE LIMITS OF SUCH AUTHORISATION ARE BY NO MEANS CLEAR. THE TRIBUNAL CANNOT SET ASIDE A GENERAL DECISION ON THE GROUNDS THAT IT DOES NOT OFFER THE GUARANTEES THAT ARE IN ANY CASE AVAILABLE TO STAFF MEMBERS ON THE BASIS OF THE GENERAL PRINCIPLES OF INTERNATIONAL CIVIL SERVICE LAW, AS ESTABLISHED AND INTERPRETED BY THE TRIBUNAL AND OTHER INTERNATIONAL ADMINISTRATIVE TRIBUNALS. THESE PRINCIPLES CONFINE THE ADMINISTRATION'S SCOPE OF ACTION TO CASES WHERE THERE IS GROSS ABUSE OF THE RIGHT TO FREEDOM OF EXPRESSION OR LACK OF PROTECTION OF THE INDIVIDUAL INTERESTS OF PERSONS AFFECTED BY REMARKS THAT ARE ILL-INTENTIONED, DEFAMATORY OR WHICH CONCERN THEIR PRIVATE LIVES. AND IT IS IN THE LIGHT OF THESE PRINCIPLES THAT THE LETTER OF 22 DECEMBER 1999 [...] SHOULD BE INTERPRETED. A REFUSAL TO GRANT AN AUTHORISATION MAY BE REGARDED AS LAWFUL ONLY IF IT COMPLIES WITH THE ABOVE PRINCIPLES."
Reference(s)
ILOAT Judgment(s): 911
Keywords:
acceptance; case law; collective rights; exception; freedom of speech; general decision; general principle; iloat; international civil servant; international civil service principles; interpretation; judicial review; limits; organisation; outside activity; publication; refusal; respect for dignity; right; safeguard; staff member's interest; staff representative; staff union; staff union activity; tribunal;
Judgment 2226
95th session, 2003
World Trade Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 21
Extract:
THE COMPLAINANT WAS REASSIGNED FROM ONE DAY TO THE NEXT. "CONSIDERING THE COMPLAINANT'S LENGTH OF SERVICE (12 YEARS WITH THE ORGANIZATION), THE ABSENCE OF ANY REPORT OF MISCONDUCT OR UNSATISFACTORY PERFORMANCE ON HIS PART, OR ANY INDICATION OF URGENCY THAT MIGHT HAVE JUSTIFIED A SUDDEN, UNHERALDED MANAGEMENT DECISION TO REASSIGN HIM, THE ACTION OF THE DIRECTOR-GENERAL WAS FLAWED BY PROCEDURAL IRREGULARITY."
Keywords:
complaint allowed; complaint allowed in part; decision; executive body; executive head; flaw; lack of evidence; misconduct; notice; organisation; period; procedural flaw; reassignment; report; satisfactory service; unsatisfactory service; work appraisal;
Judgment 2223
95th session, 2003
European Molecular Biology Laboratory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 8
Extract:
"THE FACT THAT THE DIRECTOR-GENERAL [DID NOT INITIATE] THE APPEAL PROCEDURE INVALIDATES THE DEFENDANT'S ARGUMENT THAT INTERNAL REMEDIES WERE NOT EXHAUSTED, ALTHOUGH THEY SHOULD HAVE BEEN AS REQUIRED BY ARTICLE VII OF THE TRIBUNAL'S STATUTE. WHILE IT IS REGRETTABLE THAT THE CASE WAS NEVER BROUGHT BEFORE THE JOINT ADVISORY APPEALS BOARD, THIS DOES NOT PREVENT THE TRIBUNAL FROM RULING ON THE MERITS OF THE COMPLAINT, WHICH HAS BEEN FILED WITHIN THE APPLICABLE RULES."
Reference(s)
ILOAT reference: ARTICLE VII OF THE TRIBUNAL'S STATUTE
Keywords:
competence of tribunal; complaint allowed; complaint allowed in part; consequence; executive head; formal requirements; good faith; iloat statute; internal appeal; internal appeals body; internal remedies exhausted; organisation; organisation's duties; procedure; receivability; refusal; staff member's duties;
Judgment 2222
95th session, 2003
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATIONS 5 AND 6
Extract:
"THE DECISIVE FACTOR BEHIND THE REQUEST FOR THE COMPLAINANT'S DIPLOMATIC IMMUNITY TO BE WAIVED [...] WAS NOT BROUGHT TO THE COMPLAINANT'S KNOWLEDGE. THAT MIGHT HAVE GIVEN HIM A CHANCE TO IDENTIFY HIS ACCUSERS AND, IF NEED BE, ARMED WITH THAT KNOWLEDGE, TO EXPLAIN TO HIS HIERARCHICAL SUPERIORS THE REASONS FOR THE SERIOUS CHARGES BROUGHT AGAINST HIM, BEFORE THE DECISION WAS TAKEN TO WAIVE HIS DIPLOMATIC IMMUNITY [...] BY VIRTUE OF THE RIGHT TO INFORMATION RECOGNISED BY THE TRIBUNAL'S CASE LAW, PARTICULARLY JUDGMENT 1756, THE ORGANIZATION, WHICH HELD INFORMATION THAT WAS SO IMPORTANT TO THE COMPLAINANT, HAD AN OBLIGATION TO BRING IT TO HIS KNOWLEDGE. IT MAY BE CONCLUDED FROM THE ABOVE THAT THE ORGANIZATION VIOLATED THE COMPLAINANT'S RIGHT TO BE INFORMED AND INJURED HIS DIGNITY AND REPUTATION."
Reference(s)
ILOAT Judgment(s): 1756
Keywords:
breach; case law; complainant; complaint allowed; complaint allowed in part; consequence; decision; duty to inform; elements; judgment; moral injury; organisation's duties; privileges and immunities; request; respect for dignity; right; right to reply; supervisor; waiver of immunity;
CONSIDERATION 3
Extract:
"REFERRING TO THE TRIBUNAL'S CASE LAW, IN PARTICULAR JUDGMENTS 70 AND 1543, THE DEFENDANT SUBMITS THAT THE TRIBUNAL'S COMPETENCE, RATIONE MATERIAE, DOES NOT EXTEND TO DISPUTES REGARDING THE DIRECTOR-GENERAL'S DISCRETION TO WAIVE DIPLOMATIC IMMUNITY. IT IS WORTH NOTING THAT THE COMPLAINANT DOES NOT IN FACT [...] CHALLENGE THE DECISION TO WAIVE HIS DIPLOMATIC IMMUNITY IN ITSELF. HE RATHER CHALLENGES THE CIRCUMSTANCES IN WHICH THAT DECISION WAS TAKEN, WHICH IN HIS VIEW, VIOLATED HIS CONTRACTUAL RIGHTS OR THOSE ARISING FROM THE GENERAL PRINCIPLES OF LAW WHICH SHOULD BE OBSERVED BY INTERNATIONAL ORGANISATIONS. SINCE THE CASE LAW REFERRED TO BY THE DEFENDANT DOES NOT APPLY, THE TRIBUNAL IS OF THE VIEW THAT ONLY A CONSIDERATION OF THE MERITS OF THE CASE MAY SHOW WHETHER THE COMPLAINANT'S ALLEGATIONS ARE WELL FOUNDED."
Reference(s)
ILOAT Judgment(s): 70, 1543
Keywords:
breach; case law; competence of tribunal; complainant; complaint allowed; complaint allowed in part; condition; decision; discretion; executive head; general principle; iloat; judgment; judicial review; organisation; organisation's duties; privileges and immunities; rebuttal; receivability; right; terms of appointment; waiver of immunity;
Judgment 2221
95th session, 2003
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATIONS 9 AND 10
Extract:
"IT IS WELL SETTLED THAT A PROMOTION DECISION IS A DISCRETIONARY DECISION WHICH CAN ONLY BE CHALLENGED ON LIMITED GROUNDS. MOREOVER, IT IS SETTLED THAT MERE SATISFACTION OF NECESSARY CRITERIA DOES NOT ORDINARILY CONFER A RIGHT TO PROMOTION. [...] IT FOLLOWS THAT THE [COMPETENT AUTHORITIES] WERE ENTITLED TO HAVE REGARD, IN DETERMINING WHETHER TO BACKDATE THE COMPLAINANT'S PROMOTION, TO ALL MATTERS PERTAINING TO HIS WORK PERFORMANCE, [INCLUDING] HIS STAFF REPORTS, EVEN THOUGH THE [APPLICABLE] GUIDELINES MADE NO REFERENCE TO SUCH REPORTS."
Keywords:
administrative instruction; applicable law; case law; competence; complaint allowed; consequence; criteria; decision; discretion; elements; exception; grounds; judicial review; limits; organisation; performance report; promotion; qualifications; right;
Judgment 2219
95th session, 2003
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 4
Extract:
"THE [ORGANISATION] CONTENDS THAT THE APPLICATION FOR REVIEW IS IRRECEIVABLE ON THE GROUNDS THAT IT WAS SUBMITTED MORE THAN FIVE MONTHS AFTER THE JUDGMENT WAS DELIVERED. ACCORDING TO THE [ORGANISATION], THIS DOES NOT CONSTITUTE A "REASONABLE" TIME WITHIN THE MEANING OF THE CASE LAW REFERRED TO IN JUDGMENT 1952. THE TRIBUNAL ON OCCASION HAS RULED ON APPLICATIONS FOR REVIEW FILED MORE THAN SIX MONTHS AFTER THE IMPUGNED JUDGMENT WAS DELIVERED, AND EVEN THOUGH IT IS AWARE OF THE NEED TO AVOID GOING BACK ON LEGAL SITUATIONS ARISING FROM ITS DECISIONS, IT MAY CONSIDER AN APPLICATION TO BE RECEIVABLE WHEN IT IS SUBMITTED NEARLY SIX MONTHS AFTER A JUDGMENT HAS BEEN DELIVERED, AS IN THE PRESENT CASE. IF VITAL EVIDENCE WERE TO COME TO LIGHT, FOR INSTANCE, A JUDGMENT COULD BE REVIEWED EVEN AFTER A GREATER PERIOD OF TIME HAS ELAPSED."
Reference(s)
ILOAT Judgment(s): 1952
Keywords:
application for review; case law; judgment; reasonable time; rebuttal; receivability; res judicata; time limit;
Judgment 2218
95th session, 2003
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 5
Extract:
"THE ORGANIZATION ARGUES THAT THE COMPLAINANT SUBMITTED NEW "CONCLUSIONS" TO THE TRIBUNAL, COMPARED TO THOSE HE HAD PUT FORWARD IN HIS INTERNAL APPEAL [...] IN FACT, THE COMPLAINANT'S PLEAS, WHETHER IN THE INTERNAL APPEAL OR BEFORE THE TRIBUNAL, CONSIST IN CHALLENGING THE DECISION TAKEN REGARDING HIS GRADE AND IN OBTAINING A POSITION IN THE NORMAL SALARY SCALE AT THE LEVEL CLOSEST TO THE SALARY HE HAD BEEN RECEIVING IN THE PREVIOUS SYSTEM. HIS REQUEST TO BE PLACED AT A GRADED LEVEL WITHIN THE NEW SCALE INSTEAD OF ONE ALTOGETHER OUTSIDE THE SCALE CANNOT PROPERLY BE CONSIDERED AS GOING BEYOND THE CLAIMS HE HAD SUBMITTED IN THE INTERNAL APPEALS PROCEEDINGS".
Keywords:
claim; complainant; complaint; decision; identical claims; iloat; internal appeal; interpretation; new claim; procedure; receivability; request; salary; scale;
Judgment 2214
95th session, 2003
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 3 B) AND C)
Extract:
THE COMPLAINANT ASKED FOR THE PAYMENT OF THE EXPATRIATION ALLOWANCE PROVIDED FOR IN ARTICLE 72 OF THE EPO'S SERVICE REGULATIONS. THE TRIBUNAL GAVE "A DEFINITION OF PERMANENT OR CONTINUOUS RESIDENCE. WHILE THIS REQUIRES ACTUAL LONG-TERM PRESENCE IN THE COUNTRY CONCERNED, IT DOES NOT NECESSARILY EXCLUDE ANOTHER RESIDENCE. IN JUDGMENT 1099 THE TRIBUNAL HELD THAT IN ORDER TO ESTABLISH WHETHER THE COMPLAINANT MET THE CONDITION OF 'CONTINUOUS RESIDENCE' IN THE COUNTRY OF HIS DUTY STATION FOR AT LEAST THREE YEARS PRIOR TO BEING RECRUITED BY THE OFFICE, IT WAS NECESSARY TO DETERMINE WHETHER THERE WERE "OBJECTIVE AND FACTUAL LINKS WITH THAT COUNTRY". IT ADDED THAT: "WHAT MATTERS IS THAT THE COMPLAINANT HAD TO LIVE, AND DID LIVE [IN THAT COUNTRY]". IT WAS NOT IMPORTANT TO KNOW WHETHER THE COMPLAINANT HAD PAID TAXES THERE OR WHETHER, AT THE SAME TIME, HE KEPT A HOME ADDRESS AT HIS FORMER PLACE OF RESIDENCE (SEE JUDGMENT 1099, UNDER 8). THE STATUS OF THE RESIDENCE IS NOT RELEVANT EITHER (SEE JUDGMENT 1150). IT IS CLEAR FROM THE CASE LAW WHEN RESIDENCE MUST BE DEEMED TO HAVE BEEN INTERRUPTED, WITHIN THE MEANING OF ARTICLE 72 OF THE SERVICE REGULATIONS. IT IS NOT SUFFICIENT FOR THE PERSON CONCERNED TO HAVE STOPPED LIVING IN A PARTICULAR COUNTRY; HE MUST IN ADDITION HAVE INTENDED TO LEAVE THE COUNTRY FOR SOME LENGTH OF TIME."
Reference(s)
Organization rules reference: ARTICLE 72 OF THE SERVICE REGULATIONS FOR PERMANENT EMPLOYEES OF THE EUROPEAN PATENT OFFICE
ILOAT Judgment(s): 1099, 1150
Keywords:
appointment; assignment; case law; condition; definition; duty station; iloat; judgment; non-resident allowance; period; place of origin; provision; request; residence; same; staff member's duties; staff regulations and rules; tax;
Judgment 2213
95th session, 2003
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 6 A)
Extract:
THE TRIBUNAL HAD DISMISSED THE COMPLAINT BY WHICH THE COMPLAINANT IMPUGNED THE NON-RENEWAL OF HIS APPOINTMENT. IN HIS APPLICATION FOR REVIEW OF THAT JUDGMENT HE SUBMITS THAT A POST INTENDED FOR HIM HAD BEEN MENTIONED IN THE DRAFT PROGRAMME AND BUDGET AND THAT, SINCE THE DOCUMENT HAD BEEN APPROVED AS IT STOOD BY THE GENERAL CONFERENCE, THIS IMPLIED HIS APPOINTMENT TO THE POST AT ISSUE. "THE QUESTION ARISES AS TO WHETHER SUCH AN ARGUMENT AFFORDS GROUNDS FOR REVIEW. IT IS NOT NECESSARY TO ANSWER THAT QUESTION, CONSIDERING THAT THE FACT DOES NOT APPEAR TO BE DECISIVE, SINCE THE ADOPTION OF A BUDGET COULD [...] NOT BE INTERPRETED AS A DECISION TO MAKE AN APPOINTMENT."
Keywords:
acceptance; admissible grounds for review; application for review; appointment; assignment; consequence; contract; decision; executive body; inadmissible grounds for review; interpretation; judgment; non-renewal; post;
CONSIDERATION 10
Extract:
THE FINANCIAL CLAIMS THE COMPLAINANT SUBMITS IN HIS APPLICATION FOR REVIEW ARE GREATER THAN THOSE HE PUT FORWARD IN THE PROCEEDINGS OF THE JUDGMENT HE WANTS TO HAVE REVIEWED. "TO THAT EXTENT, THEY ARE [...] IRRECEIVABLE ON THE GROUNDS THAT INTERNAL REMEDIES HAVE NOT BEEN EXHAUSTED."
Keywords:
allowance; application for review; claim; condition; internal remedies exhausted; judgment; new claim; procedure; receivability;
Judgment 2210
94th session, 2003
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 5
Extract:
"WHERE A RESERVE RECRUITMENT LIST IS RESORTED TO, THE VACANT POST IS FILLED WITHOUT APPLYING THE COMPETITION PROCEDURE PROVIDED FOR IN THE ABOVE-MENTIONED PROVISIONS. STAFF MEMBERS MUST BE GIVEN THE POSSIBILITY OF ENTERING COMPETITIONS ON THE BASIS OF WHICH RESERVE LISTS FOR FILLING 'SIMILAR' POSTS ARE TO BE ESTABLISHED. THAT POSSIBILITY IS DENIED THEM IF THEY DO NOT KNOW WHAT IS MEANT BY 'SIMILAR' POSTS. [...] THE BROADER THE DEFINITION OF 'SIMILAR', THE GREATER THE RISK OF SUCH OCCURRENCES. THE REQUIREMENTS OF EQUAL TREATMENT, OBJECTIVITY AND TRANSPARENCY IN APPOINTMENT PROCEDURES PLACE THE [ORGANISATION] UNDER AN OBLIGATION TO PROVIDE A CLEAR AND PRECISE DEFINITION OF THE CONCEPT OF A 'SIMILAR' POST. [...] IT IS THE RESPONSIBILITY OF THE [ORGANISATION] TO SPECIFY, IN NOTICES OF COMPETITION, THE NATURE OF THE POSTS WHICH CAN BE CONSIDERED TO BE 'SIMILAR' FOR THE PURPOSES OF ANY SUBSEQUENT USE OF A RESERVE LIST."
Keywords:
appointment; candidate; competition; complaint allowed; complaint allowed in part; definition; equal treatment; good faith; organisation's duties; right; same; vacancy; vacancy notice;
CONSIDERATION 4 (C) AND (D)
Extract:
THE AGENCY CONSIDERS THAT THE COMPLAINANT HAS NO CAUSE OF ACTION (TO CHALLENGE THE OUTCOME OF A COMPETITION) SINCE SHE HOLDS A POST CORRESPONDING TO HER WISHES AND DID NOT APPLY FOR A POST WHICH IS, ACCORDING TO THE ORGANISATION, VERY SIMILAR TO THE DISPUTED POST. THE TRIBUNAL STATES THAT: "ALL STAFF MEMBERS ARE ENTITLED TO COMPETE IN ACCORDANCE WITH THE CONDITIONS LAID DOWN IN THE APPLICABLE PROVISIONS. STAFF MEMBERS ARE FREE TO CHOOSE WHETHER OR NOT TO APPLY FOR A COMPETITION, PROVIDED THAT THEY DO NOT ABUSE THIS RIGHT."
Keywords:
appointment; candidate; cause of action; competition; complaint allowed; complaint allowed in part; post; receivability; right;
Judgment 2207
94th session, 2003
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 9
Extract:
THE AFFAIR THE COMPLAINANT HAD WITH A NATIONAL OF THE COUNTRY OF THE DUTY STATION LED TO A SERIES OF INCIDENTS. "IN VIEW OF THE PARTICULAR CIRCUMSTANCES OF THE CASE, IT IS PERFECTLY LEGITIMATE TO CONCLUDE THAT IT WAS IN THE ORGANIZATION'S INTEREST TO TERMINATE THE COMPLAINANT'S ASSIGNMENT IN NAIROBI IN ORDER TO MAINTAIN AN UNTROUBLED WORKING ATMOSPHERE IN THE SERVICE AND TO PRESERVE ITS GOOD RELATIONS WITH THE HOST COUNTRY. HOWEVER, IN ACCORDANCE WITH THE TRIBUNAL'S CASE LAW (SEE, IN PARTICULAR, JUDGMENTS 269 AND 1231), THE DEFENDANT COULD NOT TERMINATE THE COMPLAINANT'S APPOINTMENT SOLELY ON THAT BASIS, WITHOUT HAVING TAKEN APPROPRIATE STEPS TO FIND HIM A NEW ASSIGNMENT."
Reference(s)
ILOAT Judgment(s): 269, 1231
Keywords:
case law; complaint allowed; complaint allowed in part; conduct; duty station; member state; organisation's duties; organisation's interest; organisation's reputation; reassignment; termination; transfer; working relations;
Judgment 2204
94th session, 2003
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 6
Extract:
THE ORGANISATION "EXPRESSES DOUBT AS TO THE LOCUS STANDI OF MOST OF THE COMPLAINANTS, WHO ARE STILL FAR FROM THE AGE OF RETIREMENT [...]. IN FACT, ALL THE COMPLAINANTS, REGARDLESS OF THEIR AGE, HAVE AN OBVIOUS INTEREST IN ASCERTAINING AS SOON AS POSSIBLE THE CONDITIONS ON WHICH THE PENSION RIGHTS ACQUIRED BY VIRTUE OF THEIR EMPLOYMENT PRIOR TO JOINING [THE ORGANISATION] MAY BE TRANSFERRED TO THEIR NEW PENSION SCHEME."
Keywords:
age limit; cause of action; condition; pension; pension entitlements; receivability; retirement; transfer of pension rights;
Judgment 2198
94th session, 2003
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATIONS 12 AND 13
Extract:
THE COMPLAINANT WORKED, FROM 1993 TO 2000, UNDER A SERIES OF SHORT-TERM CONTRACTS OF VARYING DURATIONS. "IT WAS CLEARLY WITHIN THE DISCRETIONARY AUTHORITY OF THE DIRECTOR-GENERAL TO DECIDE WHETHER TO RENEW THE COMPLAINANT'S SHORT-TERM CONTRACT OR OFFER HIM A FIXED-TERM CONTRACT. THE COMPLAINANT CANNOT NOW CLAIM TO BE TREATED RETROACTIVELY AS IF HE HAD A FIXED-TERM CONTRACT; HE WAS AT ALL TIMES A SHORT-TERM STAFF MEMBER (SEE, FOR EXAMPLE, JUDGMENT 2107, UNDER 10). [...] PRECEDENT HAS IT THAT, AT THE DISCRETION OF THE EXECUTIVE HEAD, A TEMPORARY APPOINTMENT MAY BE EXTENDED OR CONVERTED TO A FIXED-TERM APPOINTMENT, BUT IT DOES NOT CARRY ANY EXPECTATION OF, NOR IMPLY ANY RIGHT TO, SUCH EXTENSION OR CONVERSION AND SHALL, UNLESS EXTENDED OR CONVERTED, EXPIRE ACCORDING TO ITS TERMS, WITHOUT NOTICE OR INDEMNITY (SEE, IN PARTICULAR, JUDGMENT 1560, UNDER 4)."
Reference(s)
ILOAT Judgment(s): 1560, 2107
Keywords:
contract; discretion; duration of appointment; executive head; fixed-term; non-renewal; non-retroactivity; notice; right; short-term; successive contracts; terminal entitlements;
CONSIDERATION 15
Extract:
THE COMPLAINANT WORKED, FROM 1993 TO 2000, UNDER A SERIES OF SHORT-TERM CONTRACTS OF VARYING DURATIONS. THE COMPLAINANT SUBMITS THAT THERE HAS BEEN UNJUST ENRICHMENT ON THE PART OF THE ORGANIZATION: IT PROFITED MATERIALLY FROM APPOINTING HIM ON A SHORT-TERM BASIS BECAUSE HE WAS DOING THE WORK OF A FIXED-TERM STAFF MEMBER. "THE EXISTENCE AND VALIDITY OF THE CONTRACTS OF EMPLOYMENT ARE A COMPLETE BAR TO THIS PLEA. THE DOCTRINE OF UNJUST ENRICHMENT FINDS ITS ORIGINS IN THE LAW OF QUASI-CONTRACT. AS WAS SAID IN JUDGMENT 2097, UNDER 20, 'THE EXISTENCE OF A VALID CONTRACT BETWEEN THE PARTIES, COVERING THE VERY MATTERS WHICH ARE THE SUBJECT OF THE CLAIM, EXCLUDES ANY CLAIM OF UNJUST ENRICHMENT'."
Reference(s)
ILOAT Judgment(s): 2097
Keywords:
acceptance; contract; duration of appointment; fixed-term; intention of parties; law of contract; offer; right; short-term; successive contracts; unjust enrichment;
CONSIDERATION 16
Extract:
THE COMPLAINANT WORKED, FROM 1993 TO 2000, UNDER A SERIES OF SHORT-TERM CONTRACTS OF VARYING DURATIONS. "... APPOINTMENTS EXTENDED BY THE ORGANIZATION TO PROSPECTIVE EMPLOYEES AND ACCEPTED BY THE LATTER FREELY, ARE POLICY MATTERS OVER WHICH THE TRIBUNAL WILL NOT INTERFERE."
Keywords:
acceptance; contract; discretion; duration of appointment; intention of parties; judicial review; offer; short-term; successive contracts;
Judgment 2197
94th session, 2003
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 33
Extract:
"SINCE COMPLIANCE WITH INTERNAL APPEAL PROCEDURES IS A CONDITION PRECEDENT TO ACCESS TO THE TRIBUNAL, AN ORGANISATION HAS A POSITIVE OBLIGATION TO SEE TO IT THAT SUCH PROCEDURES MOVE FORWARD WITH REASONABLE SPEED. HERE, WHILE THE [JOINT APPEALS] BOARD, ONCE THE MEETINGS HAD STARTED, CAME TO ITS CONCLUSION FAIRLY QUICKLY, THERE CAN BE NO VALID EXCUSE TO JUSTIFY THE DELAY OF OVER TWENTY MONTHS BETWEEN THE FILING OF THE INTERNAL APPEAL AND THE START OF THE HEARINGS. NO DOUBT SOME OF THIS WAS DUE TO THE COMPLAINANT HERSELF AND THE LONG CONVOLUTED AND COMPLICATED NATURE OF HER PLEADINGS, WHICH FREQUENTLY CONTRADICT THEMSELVES, BUT [THE ORGANIZATION] CANNOT ESCAPE RESPONSIBILITY FOR THE INORDINATE AMOUNT OF TIME TAKEN." THE TRIBUNAL AWARDS 3 000 EUROS IN DAMAGES.
Reference(s)
ILOAT Judgment(s): 2072
Keywords:
administrative delay; complaint allowed; complaint allowed in part; damages; delay; internal appeal; internal appeals body; internal remedies exhausted; oral proceedings; organisation's duties; staff member's duties;
Judgment 2193
94th session, 2003
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 12
Extract:
THE COMPLAINANT, WHO HAD ENTERED INTO A CIVIL SOLIDARITY CONTRACT (PACTE CIVIL DE SOLIDARITE, HEREINAFTER 'PACS') WITH HIS MALE PARTNER, INFORMED THE ADMINISTRATION THAT HIS PARTNER WAS ENTIRELY DEPENDENT ON HIM. THE ORGANISATION REPLIED THAT, UNDER THE RULES CURRENTLY APPLICABLE WITHIN THE UNITED NATIONS SYSTEM, THE PACS WAS NOT RECOGNISED AS A FORMAL MARRIAGE THAT COULD CREATE AN ENTITLEMENT TO ANY BENEFITS OR ALLOWANCES FOR A DEPENDENT SPOUSE. "THE COMPLAINANT SUBMITS THAT SINCE THE DIRECTOR-GENERAL IS ENTITLED TO MODIFY OR CREATE EXCEPTIONS TO THE APPLICATION OF THE STAFF RULES, HE COULD AND OUGHT TO HAVE MADE AN EXCEPTION IN THE PRESENT CASE OR AMENDED THE DISPUTED TEXT IN ORDER TO PROTECT THE RIGHTS OF HOMOSEXUALS. [...] HOWEVER, IRRESPECTIVE OF THE VALIDITY OF THE ARGUMENTS PUT FORWARD IN URGING THE DIRECTOR-GENERAL TO TAKE INDIVIDUAL CHOICES INTO ACCOUNT IN THE CONTEXT OF A CULTURE OF TOLERANCE COMPATIBLE WITH CHANGING MORAL BELIEFS, THE DIRECTOR-GENERAL CANNOT BE COMPELLED TO RESORT TO WHAT IS MERELY AN OPTION OPEN TO HIM UNDER CERTAIN CLEARLY DEFINED CIRCUMSTANCES, SINCE EXERCISING THAT OPTION IS ENTIRELY A MATTER OF DISCRETION."
Keywords:
amendment; contract; dependant; discretion; domestic law; equal treatment; exception; executive head; family allowance; marital status; same-sex marriage; sex discrimination; staff regulations and rules;
CONSIDERATION 8
Extract:
THE COMPLAINANT, WHO HAD ENTERED INTO A CIVIL SOLIDARITY CONTRACT (PACTE CIVIL DE SOLIDARITE, HEREINAFTER 'PACS') WITH HIS MALE PARTNER, INFORMED THE ADMINISTRATION THAT HIS PARTNER WAS ENTIRELY DEPENDANT ON HIM. THE ORGANISATION REPLIED THAT, UNDER THE RULES CURRENTLY APPLICABLE WITHIN THE UNITED NATIONS SYSTEM, THE PACS WAS NOT RECOGNISED AS A FORMAL MARRIAGE THAT COULD CREATE AN ENTITLEMENT TO ANY BENEFITS OR ALLOWANCES FOR A DEPENDENT SPOUSE. THE TRIBUNAL SHARES THE VIEW THAT THE ORGANIZATION "IS NOT BOUND BY CONTRACTS ENTERED INTO UNDER NATIONAL LAWS".
Keywords:
contract; dependant; domestic law; family allowance; marital status; organisation's duties; same-sex marriage; sex discrimination;
CONSIDERATION 11
Extract:
THE COMPLAINANT, WHO HAD ENTERED INTO A CIVIL SOLIDARITY CONTRACT (PACTE CIVIL DE SOLIDARITE, HEREINAFTER 'PACS') WITH HIS MALE PARTNER, INFORMED THE ADMINISTRATION THAT HIS PARTNER WAS ENTIRELY DEPENDANT ON HIM. THE ORGANISATION REPLIED THAT, UNDER THE RULES CURRENTLY APPLICABLE WITHIN THE UNITED NATIONS SYSTEM, THE PACS WAS NOT RECOGNISED AS A FORMAL MARRIAGE THAT COULD CREATE AN ENTITLEMENT TO ANY BENEFITS OR ALLOWANCES FOR A DEPENDENT SPOUSE. THE TRIBUNAL STATES THAT "NEITHER THE LETTER NOR THE SPIRIT OF THE RELEVANT TEXTS CITED BY THE PARTIES, NOR INDEED THE CASE LAW, ENABLE PARTNERS BOUND BY A PACS TO BE CONSIDERED AS HAVING THE STATUS OF SPOUSES WITHIN THE MEANING OF STAFF RULE 103.9."
Reference(s)
Organization rules reference: UNESCO'S STAFF RULE 103.9
Keywords:
applicable law; case law; contract; dependant; domestic law; family allowance; interpretation; marital status; organisation's duties; same-sex marriage;
Judgment 2191
94th session, 2003
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 3
Extract:
"ORGANISATIONS MUST CAREFULLY TAKE INTO ACCOUNT THE INTERESTS AND DIGNITY OF STAFF MEMBERS WHEN EFFECTING" A TRANSFER TO WHICH THE STAFF MEMBER CONCERNED IS OPPOSED.
Keywords:
complaint allowed; complaint allowed in part; discretion; organisation's duties; respect for dignity; staff member's interest; transfer;
Judgment 2190
94th session, 2003
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 3
Extract:
"IT IS INCOMPREHENSIBLE THAT NO INTERNAL ADMINISTRATIVE INVESTIGATION WAS CONDUCTED FOLLOWING AN ACCIDENT WHICH INVOLVED A [...] VEHICLE [OF THE ORGANIZATION] DRIVEN BY AN EMPLOYEE OF THE ORGANIZATION IN THE CONTEXT OF AN OFFICIAL MISSION, AND WHICH CAUSED THE DEATH OF TWO PASSENGERS, ONE OF WHOM WAS A [...] STAFF MEMBER [OF THE ORGANIZATION], AS WELL AS THE SERIOUS INJURIES SUFFERED BY THE COMPLAINANT. THE FACT THAT THE NAMIBIAN AUTHORITIES OPENED THEIR OWN ENQUIRY COULD NOT IN ANY WAY EXEMPT THE ORGANIZATION FROM ASCERTAINING WHETHER THE CONDITION OF THE VEHICLE, THE PREPARATION OF THE MISSION AND, MORE GENERALLY, THE CIRCUMSTANCES OF THE ACCIDENT REVEALED ANY ADMINISTRATIVE FAILURE, THE CONSEQUENCES OF WHICH IT WOULD HAVE A DUTY TO BEAR. [...] THERE IS NO EVIDENCE TO SUGGEST THAT ANY INTERNAL ENQUIRY WHATSOEVER WAS CONDUCTED IN CONNECTION WITH THIS ACCIDENT. THIS FAILURE CAUSED THE COMPLAINANT AN INJURY WHICH THE TRIBUNAL CONSIDERS TO BE EQUITABLY COMPENSATED BY AN AWARD OF 5,000 UNITED STATES DOLLARS."
Keywords:
accident; complaint allowed; complaint allowed in part; damages; injury; inquiry; member state; misconduct; omission; organisation's duties; service-incurred;
CONSIDERATION 6
Extract:
"THE COMPLAINANT'S CLAIM THAT THE TRIBUNAL SHOULD ORDER THE ORGANIZATION TO UNDERTAKE DISCIPLINARY INVESTIGATIONS INTO THE ACTIONS OF ... THE STAFF MEMBER WHO ALLEGEDLY ENTERED A 'FRIVOLOUS AND DILATORY' PLEA OF IRRECEIVABILITY BEFORE THE [HEADQUARTERS] BOARD [OF APPEAL], CLEARLY CANNOT BE ALLOWED BY THE TRIBUNAL, WHICH HAS NO JURISDICTION TO ISSUE INJUNCTIONS AGAINST INTERNATIONAL ORGANISATIONS, LET ALONE TO CAST JUDGMENT ON THE MEANS OF DEFENCE USED ON BEHALF OF SUCH ORGANISATIONS IN THE CONTEXT OF INTERNAL APPEAL PROCEEDINGS OR LITIGATION."
Keywords:
claim; competence of tribunal; complaint allowed; complaint allowed in part; disciplinary procedure; inquiry; internal appeal; internal appeals body; organisation; receivability; reply; right to reply;
CONSIDERATION 3
Extract:
"THE ORGANIZATION HAS A DISCRETION TO ASSESS, IN THE CONTEXT OF ITS RELATIONS WITH A MEMBER STATE, WHICH ARE BEYOND THE JURISDICTION OF THE TRIBUNAL, WHETHER IT IS APPROPRIATE TO LIFT THE IMMUNITY FROM LEGAL PROCESS OF ITS EMPLOYEES (SEE IN THIS RESPECT JUDGMENTS 933 AND 1543)."
Reference(s)
ILOAT Judgment(s): 933, 1543
Keywords:
competence of tribunal; complaint allowed; complaint allowed in part; discretion; judicial review; member state; organisation; privileges and immunities; tribunal; waiver of immunity;
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