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Medical fitness (464,-666)

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Keywords: Medical fitness
Total judgments found: 19

  • Judgment 4064


    127th Session, 2019
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges a request made by the Administration of the FAO that he provide comments, while he was on certified sick leave, on a report issued by the Investigation Panel appointed to investigate allegations of harassment against him.

    Considerations 8-9

    Extract:

    Based on the evidence before the Tribunal, there is nothing in the FAO rules regime and no proven practice which provide guidance on how the requirement of Part II(b)(iv)(g) of the Policy on the Prevention of Harassment is to be fulfilled where a staff member who is accused of harassment is on certified sick leave. Given the FAO’s duty under the Policy on the Prevention of Harassment to investigate harassment complaints, it is reasonable that it could ask a staff member who is on sick leave to comment upon an IP report if doing so would not exacerbate the illness which occasioned the grant of sick leave and if she or he is fit to do so.
    [...] In the Tribunal’s view, the FAO took reasonable steps to discharge its duty to accord due process to the complainant, as well as its duty of care and its duty to be fair to him, while it sought to discharge its duty to implement its Policy on the Prevention of Harassment.

    Keywords:

    due process; duty of care; harassment; health reasons; inquiry; medical fitness; sick leave;



  • 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 of the tribunal; 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 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 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 by a party; 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:

    agreed termination; lack of consent; medical fitness; non-renewal of contract; 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 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 equivalent to 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 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 of the complaint; safeguard;



  • 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 652


    55th Session, 1985
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 6

    Extract:

    when the case was referred to the medical adviser, all she did was to telephone [the complainant's] doctor. in the course of their conversation [the doctor] consented to change the earlier certificate and declare that [by a specified date] the complainant was again fit for work. [...] such confabulation between professional colleagues is not in itself objectionable. it would no doubt have been more satisfactory if the two doctors had first carried out a clinical examination. [...] their approach undoubtedly made it harder to establish the facts, and for that the complainant - whom they could have asked to undergo an examination -is not to blame. the burden of proof is therefore on the [organisation]."

    Keywords:

    burden of proof; complaint allowed; decision quashed; medical certificate; medical consultant; medical examination; medical fitness; medical opinion; organisation; refusal; sick leave;



  • Judgment 541


    49th Session, 1982
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations

    Extract:

    The complainant was classified "unfit for employment". Her appointment was terminated. The Tribunal found that in failing to accord the medical opinion of the complainant's personal physician the serious and thorough consideration it deserved, the organization's chief medical officer took insufficient account of an essential fact. The decision suffers from a defect which the Tribunal will take into consideration.

    Keywords:

    complaint allowed; decision quashed; disregard of essential fact; health reasons; medical consultant; medical fitness; medical opinion; termination;



  • Judgment 528


    49th Session, 1982
    European Organization for Nuclear Research
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 4

    Extract:

    "it is for the employer to make proper arrangements for a comprehensive check-up of the applicant for employment. to expect him to prove that he is in perfect health would be to require him to disprove the existence of any impairment, and that is simply not feasible. [...] the burden is [however] on [the complainant] to satisfy the tribunal with positive proof, that his impairment was service-incurred."

    Keywords:

    appointment; burden of proof; complainant; illness; medical examination; medical fitness; organisation; service-incurred;



  • Judgment 375


    42nd Session, 1979
    Pan American Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 12

    Extract:

    "the question whether a staff member is incapacitated from work is ... a matter of judgment. the tribunal will not substitute its judgment for that of the director or of the expert advisers on whom he relies: it will intervene only if on the evidence the judgment appears to it to be wholly unreasonable or based on clearly mistaken conclusions."

    Keywords:

    discretion; incapacity; judicial review; medical fitness;



  • Judgment 248


    34th Session, 1975
    World Meteorological Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations

    Extract:

    "a staff member cannot properly be dismissed for reasons of health unless he is no longer physically or mentally fit for work."

    Keywords:

    condition; health reasons; incapacity; medical fitness; termination;



  • Judgment 192


    29th Session, 1972
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 1

    Extract:

    provision is made under the staff rules "for termination of the appointment of a staff member who during his probationary period proves unsuitable for his post on medical grounds. any decision taken under this provision lies within the director-general's discretion, and can therefore be set aside by the tribunal only if..."

    Keywords:

    discretion; enforcement; health reasons; judicial review; medical fitness; probation; provision; staff regulations and rules; termination;



  • Judgment 148


    23rd Session, 1970
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 1

    Extract:

    The experts found that "the complainant was wholly incapable of exercising the profession of engineer for which he had been trained and which he had carried on for a number of years [neither party claims that] the complainant would be able to engage even partially in any activities comparable to those of an engineer. In these circumstances the complainant must be regarded as totally incapacitated for work within the meaning of the applicable provisions."

    Keywords:

    expert inquiry; incapacity; medical examination; medical fitness;


 
Last updated: 12.08.2019 ^ top