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Incapacity

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Keywords: Incapacity
Total judgments found: 33

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  • Judgment 2657


    103rd Session, 2007
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 6

    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 but the Tribunal considers that persons who have applied for a post in an international organisation and who have not been recruited are barred from access to the Tribunal. The complainant asks that the Organisation be ordered to waive its immunity to enable him to bring proceedings before a German court. "[T]he Tribunal [recalls that it] has no authority to order the EPO to waive its immunity (see Judgment 933, under 6). It notes, however, that the present judgment creates a legal vacuum and considers it highly desirable that the Organisation should seek a solution affording the complainant access to a court, either by waiving its immunity or by submitting the dispute to arbitration."

    Reference(s)

    ILOAT Judgment(s): 933

    Keywords:

    appointment; arbitration; candidate; claim; competence of tribunal; condition; grounds; handicapped person; judgment; medical examination; medical fitness; municipal court; open competition; organisation; post; refusal; safeguard; waiver of immunity;

    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 of the Tribunal
    ILOAT Judgment(s): 67, 339, 621

    Keywords:

    appointment; candidate; case law; competence of tribunal; complaint; condition; consequence; contract; declaration of recognition; definition; exception; 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 2424


    98th Session, 2005
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 5

    Extract:

    "[T]he Joint Committee [...] refused the complainant's request to reschedule her hearing, yet her request for postponement was justified by the fact that she was declared unfit for work and that the date of the hearing was so close (she was summoned on 4 July in the afternoon for a hearing to be held on 7 July) that it did not leave her time either to prepare her defence properly or to be assisted by a counsel of her own choosing. The Tribunal rejects the reasons given for the refusal to reschedule the hearing, which were that, since the complainant had already been heard by the Joint Committee during the procedure relating to the conversion of appointments, and since the members of the Joint Committee for Disputes considered that the case file provided them with sufficient information, a hearing before the latter Committee was unnecessary. But considering that it was the Joint Committee for Disputes itself which took the initiative of summoning the complainant to a hearing, it could hardly have deemed that hearing to be «unnecessary»."

    Keywords:

    advisory body; complaint allowed; complaint allowed in part; composition; contract; counsel; grounds; incapacity; internal appeal; internal appeals body; oral proceedings; same; sick leave; time limit;



  • Judgment 2145


    93rd Session, 2002
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 5 to 8

    Extract:

    "In the Organisation's view, since the payments it was making to the complainant were entirely voluntary, a matter of grace and favour on its part, it was quite at liberty to suspend such payments when the complainant failed to fulfil her obligation to submit to the [...] medical examination [required by the Invalidity Committee]. [It] is wrong. The Invalidity Committee's report [...] was categorical in stating that the complainant must be regarded as not fit for work. That means that she was unable to perform her duties and at a minimum she was entitled to receive the emoluments provided for in Article 62(7) unless and until the Invalidity Committee made a further finding putting an end to her sick leave, extending it, or placing her on permanent disability. But, without the authorisation of the Invalidity Committee, the [Organisation] had no right by its own unilateral action to suspend the payments to which she was entitled by law. [...] There can be no doubt that the [complainant] has a clear obligation to assist the Invalidity Committee and to present herself as and when reasonably required to do so for examination or treatment. If she fails to do so, that might constitute grounds for the Invalidity Committee to declare her sick leave at an end or it might form the basis of disciplinary action. [However, the Organisation] cannot take the law into its own hands without regard for the complainant's rights or its own obligations under the Service Regulations. [...] The highhanded actions of the [Organisation] in cutting the complainant's payments are both unjustified and illegal. The impugned decision must be rescinded."

    Reference(s)

    Organization rules reference: ARTICLE 62 (7) OF THE SERVICE REGULATIONS

    Keywords:

    complaint allowed; disability benefit; disciplinary procedure; incapacity; invalidity; medical board; medical examination; medical fitness; organisation's duties; payment; pension entitlements; refusal; right; sick leave; staff member's duties; staff regulations and rules;



  • Judgment 2091


    92nd Session, 2002
    European Southern Observatory
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 10 and 12

    Extract:

    The complainant had an accident while on duty. He signed a settlement agreement with the organisation and the CERN Pension Fund in order to solve the issue of the payment of an incapacity pension by the pension fund. "The ESO submits the complaint is not receivable as it does not allege non-observance of the terms of the complainant's appointment or of the [organisation]'s rules and regulations [...]. The Tribunal considers that since the settlement between the complainant, the [organisation] and the CERN Pension Fund arises out of the complainant's rights under his contract of employment as well as the Staff Rules and Regulations, it has jurisdiction to consider the effect of the trilateral agreement."

    Keywords:

    accident; breach; cern pension fund; competence of tribunal; complainant; complaint; complaint allowed in part; consequence; contract; definition; effect; iloat; incapacity; judicial review; organisation; payment; pension; provision; receivability; right; service-incurred; staff regulations and rules;



  • Judgment 2079


    92nd Session, 2002
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 11

    Extract:

    The complainant, who was only fit to work 75 per cent of normal hours, was able to work only as a staff representative. Such activities were restricted to 50 per cent of normal working hours but he nevertheless "request[ed] to work at 75 per cent on staff committee duties [which] was in fact a request to devote 100 per cent of office time to that function. As such it was manifestly inadmissible."

    Keywords:

    complainant; limits; medical fitness; part-time employment; refusal; request; staff representative; staff union; staff union activity;



  • Judgment 2049


    91st Session, 2001
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 5

    Extract:

    After lenghty negociations, the complainant accepted the offer of separation by mutual agreement (which increased by 50% his termination indemnity on the condition that he would not challenge the decision of separation either before the Appeals Board or the Tribunal). He pleads lack of consent. "The complainant cites financial difficulties and a 'reactive anxio-depressive clinical context' to demonstrate that he was in no state to consent freely. But the evidence shows that he had been examined by an expert chosen by mutual agreement between his doctor and the chief medical officer of [the organization] and that he had been found fit to resume work as from June 1996. There are no grounds for doubting that the complainant had all his mental faculties when, after lengthy negotiations, he finally accepted an offer which afforded him significant financial benefits. He has neither proved that his consent to the negotiated termination was deficient nor provided any evidence to cast doubt on its validity."

    Keywords:

    collective bargaining; contract; evidence; lack of consent; medical fitness; non-renewal; offer; separation from service; terminal entitlements; waiver of right of appeal;



  • Judgment 2007


    90th Session, 2001
    International Federation of Red Cross and Red Crescent Societies
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 8

    Extract:

    "Under the provisions [of the Staff Regulations], a contract may be terminated for unsatisfactory performance only after the employee has been served with a formal written warning allowing him or her three months to improve. That period which essentially aims at allowing the employee concerned enough time as may be constructively used to correct mistakes, make good shortcomings and improve both behaviour and working relations with other staff members must cover an effective period of three months during which the employee must be in a position to perform his or her duties correctly and to make full use of his or her abilities. The Tribunal considers that in this instance the complainant was not in such a position."

    Keywords:

    complaint allowed; complaint allowed in part; duty to inform; evidence; injury; medical fitness; notice; period; qualifications; termination; unsatisfactory service; warning; work appraisal;



  • Judgment 1901


    88th Session, 2000
    European Organization for Nuclear Research
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 8 and 9

    Extract:

    The organization refused the complainant both an unsuitability and an invalidity pension. It explains that it couldn't arrange for a final medical examination at the time of the complainant's dismissal because he was in prison. "The Tribunal cannot accept that argument. Under Article R II 4.18 of the Staff Regulations, a medical examination is compulsory when a contract is terminated, for whatever reason. In view of the particular circumstances of the case, [the organization] should have been at particular pains to comply with that rule. In the absence of such an examination the pension fund should have determined whether, upon termination of service, the complainant was to be treated as unfit for work because of a deterioration in his physical or mental health which occurred while he was employed by [the organization]. The administrator of the Pension Fund was, therefore, wrong [...] when he refused to consider the complainant's entitlement to a pension for unsuitability." The case was sent back to the Pension Fund.

    Reference(s)

    Organization rules reference: ARTICLE R II 4.18 OF THE STAFF REGULATIONS OF CERN

    Keywords:

    case sent back to organisation; cern pension fund; complaint allowed; complaint allowed in part; disability benefit; due process; incapacity; invalidity; medical examination; organisation's duties; pension; pension entitlements; procedure; refusal; service-incurred; termination;



  • Judgment 1669


    83rd Session, 1997
    World Customs Organization (Customs Co-operation Council)
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 17 and 18

    Extract:

    "one principle of international civil service law is that a decision on a staff member's status may not work to his detriment before the date at which he had notice of it. [...] the grant of an invalidity pension does not empower the organisation to make the termination retroactive as from the date set for the start of payment and to disregard the requirement of notice in the rules [...] here the council failed to observe the rules."

    Keywords:

    case sent back to organisation; complaint allowed; complaint allowed in part; date of notification; decision; decision quashed; disability benefit; effect; incapacity; international civil service principles; non-retroactivity; notice; termination;



  • Judgment 1665


    83rd Session, 1997
    European Organization for Nuclear Research
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 17

    Extract:

    the complainant argues "that by awarding him the ex gratia benefit [the governing board of the cern pension fund] held him to be entitled to a partial incapacity pension. that is not so. the board had already concluded, since he did not qualify under the rules, that he was entitled to a pension neither for total nor for partial incapacity. it was prepared to grant him a pension for loss of earning capacity i.e. an 'unsuitability pension'; but, having heard him, it decided as an exceptional measure to grant him instead ex gratia benefits equivalentto the 'partial incapacity pension'. granting him the equivalent is not the same thing as actually awarding him such a pension."

    Keywords:

    cern pension fund; disability benefit; ex gratia; incapacity; medical fitness;



  • Judgment 1640


    83rd Session, 1997
    International Atomic Energy Agency
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 22

    Extract:

    "the medical opinions of independent medical practitioners would ordinarily prevail and the tribunal would not interfere. but this is no ordinary case. [...] the tribunal had to appoint a medical expert to give a final opinion on the complainant's medical condition [...] that expert found that she was not fit to return to work" a finding that was at odds with the medical opinions that the agency has relied on to justify its decision.

    Keywords:

    complaint allowed; complaint allowed in part; different appraisals; exception; illness; judicial review; limits; medical examination; medical fitness; medical opinion; sick leave;



  • Judgment 1606


    82nd Session, 1997
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 11

    Extract:

    "the complainant's case is that his earning capacity has been impaired, not directly, but merely indirectly in that travel is essential for any employment for which he is suited and his condition [following a service incurred accident] has made it difficult, if not impossible, for him to travel. the burden therefore lay on him in the internal proceedings to show that any suitable employment would entail an appreciable amount of travel."

    Keywords:

    accident; burden of proof; evidence; incapacity; injury; service-incurred;



  • Judgment 1425


    79th Session, 1995
    European Organization for Nuclear Research
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 12

    Extract:

    the complainant argues that an international official who is unfit for work may be dismissed only for reasons of health. "that is beside the point because hers is not a case of dismissal. what happened was that [...] cern refused to renew her appointment".

    Keywords:

    complainant; contract; health reasons; incapacity; non-renewal; separation from service; sick leave; termination;



  • Judgment 1233


    74th Session, 1993
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 10

    Extract:

    "at the time of her dismissal for reasons of health under staff regulation 9.1 she was no longer able to carry out her duties and therefore met the conditions in that regulation. the organization [...] afforded her all the safeguards international civil servants are entitled to. so there was no abuse of authority."

    Reference(s)

    Organization rules reference: UNESCO STAFF REGULATION 9.1

    Keywords:

    decision; health reasons; incapacity; medical fitness; misuse of authority; right to reply; staff regulations and rules; termination;



  • Judgment 1104


    71st Session, 1991
    European Organization for Nuclear Research
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Summary

    Extract:

    the complainant was asked to report to an expert medical examination to examine his fitness for shift work. he objects to questions the organization put to the expert. though the complaint is receivable, the tribunal dismisses it on the merits since the material questions were relevant to the dispute and did not deprive the complainant of any safeguard. once the medical expert has reported and the administrative decision been taken, the complainant may submit a further complaint bearing on the dispute as a whole.

    Keywords:

    expert inquiry; incapacity; medical examination; medical fitness; organisation's duties; procedure; receivability; safeguard;



  • Judgment 971


    66th Session, 1989
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 16

    Extract:

    "besides an annual invalidity pension an employee is entitled under rule 14 of the compensation rules to lump-sum compensation for permanent loss of a member or function [thereof]".

    Keywords:

    compensation; incapacity; invalidity; lump-sum;

    Consideration 18

    Extract:

    "according to the organization's own interpretation of rule 14 the sum awarded in compensation for permanent loss of function is intended to cover loss of enjoyment of life as well and the percentages should be considered to reflect such loss in the 'normal situation'. the tribunal considers that the complainant's case goes beyond the 'normal situation'. [...] the tribunal accordingly awards him a further 5 per cent of the basic figure".

    Keywords:

    compensation; incapacity; invalidity; loss of enjoyment of life;

    Consideration 13

    Extract:

    "the organization is liable only in respect of 50 per cent of the total incapacity. accordingly, the tribunal awards the complainant compensation under this head in the form of an annual invalidity pension equal to one-third of the yearly figure of his pensionable remuneration, i.e. half the full pension."

    Keywords:

    disability benefit; incapacity; invalidity; liability; organisation; rate;



  • Judgment 947


    65th Session, 1988
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 2 and 3

    Extract:

    "the tribunal accepts the findings of the medical inquiry, which establish finally the medical aspects of the case. in view of the findings the tribunal, before delivering final judgment, requires from the complainant his replies to the following questions: (1) what invalidity pension is he claiming in compensation for total work disability caused as to 50 per cent by the accident ? (2) what is the total amount he is claiming in compensation for loss of function of the foot and of this amount what portion is attributable to loss of enjoyment of life ?"

    Keywords:

    disability benefit; expert inquiry; further submissions; incapacity; interlocutory order; invalidity; loss of enjoyment of life; medical examination;



  • Judgment 909


    64th Session, 1988
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Summary

    Extract:

    after using up his entitlement to sick leave on full pay, the complainant was put on half-pay. having later failed to return to work after being declared fit, he was put on unpaid leave. this decision is found by the tribunal to be in keeping with the provisions of the staff regulations on special leave.

    Keywords:

    medical fitness; sick leave; special leave; unpaid leave;



  • Judgment 889


    64th Session, 1988
    European Southern Observatory
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 4 and 5

    Extract:

    "the new text of ii 4.01 [cern pension fund] reads: 'unsuitability is the reduction, presumed to be permanent or long-term, by at least 1/3 in earning capacity resulting from a deterioration in physical or mental health, which occurred while the person concerned held a contract with one of the participating organizations'. [...] the complainant did not satisfy the conditions in ii 4.01."

    Reference(s)

    Organization rules reference: ARTICLE II 4.01 OF THE CERN PENSION FUND

    Keywords:

    cern pension fund; definition; illness; incapacity; medical fitness; service-incurred;



  • Judgment 875


    63rd Session, 1987
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 8

    Extract:

    "the information available does not enable the tribunal to assess whether the accident of 3 april 1982 resulted in all the permanent injuries now suffered by the complainant or only in the permanent injury to his left foot. in these circumstances an examination should be carried out by a medical expert whose terms of reference are set out below."

    Keywords:

    accident; expert inquiry; further submissions; incapacity; interlocutory order; invalidity; medical examination; rate; service-incurred;

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Last updated: 21.08.2014 ^ top