Judgment No. 1230
1. THE DIRECTOR GENERAL'S DECISION OF 26 SEPTEMBER 1991 REFUSING TO EXTEND THE COMPLAINANT'S CONTRACT BEYOND 31 OCTOBER 1991 IS SET ASIDE.
2. THE COMPLAINANT IS SENT BACK TO THE AGENCY FOR A NEW AND SUBSTANTIATED DECISION ON THE EXTENSION OF HIS CONTRACT.
3. THE AGENCY SHALL PAY HIM DAMAGES IN AN AMOUNT EQUIVALENT TO THE SALARY AND ALLOWANCES HE WOULD HAVE BEEN PAID IN THE PERIOD FROM 1 NOVEMBER 1991 TO THE DATE OF THE NEW DECISION.
4. IT SHALL RESTORE HIS PENSION ENTITLEMENTS FOR THE SAME PERIOD.
5. IT SHALL PAY HIM 20,000 FRENCH FRANCS IN MORAL DAMAGES.
6. IT SHALL PAY HIM 20,000 FRENCH FRANCS TOWARDS COSTS.
The defendant maintains that the complainant did not meet the two-month time limit for lodging appeals and failed to exhaust the internal means of redress. The Committee was of the view that, in this case, exceptional circumstances warranted waiving the time limit and allowing the appeal. The defendant contends that the Committee's decision was not binding on the Agency. "Only where the Committee's appraisal of the circumstances is flagrantly wrong or based on plainly mistaken facts may the Director General disregard it, and even then his decision will be subject to review by the Tribunal."
receivability of the complaint; internal appeals body; internal appeal; internal remedies exhausted; time limit; exception; time bar; staff regulations and rules; judicial review; mistake of fact; mistaken conclusion; condition
The impugned decision - the non-renewal of the complainant's contract until his retirement- was made on the basis of mistake of fact, an erroneous interpretation of certain statements made by the complainant regarding his availability. It was also established that the Agency must have known that the government of the complainant's country of origin wanted him to return home. The Agency, in this context "ought to have paid especial heed, for the sake of the independence of the international civil service, and his own in particular, to finding out just what he really intended and conveying it accurately to the competent committee."
organisation; independence; member state; international civil service principles; organisation's duties; contract; fixed-term; intention of parties; non-renewal of contract; official
The Agency granted the complainant only a short contract renewal, refusing to renew the contract until the date of his retirement. According to the defendant, this decision was based on information in its files which indicated that the complainant wasn't available after a certain date. Now it has been established that the complainant said he would be available as long as the Agency wished. "A decision by an international organization to grant only a short extension of appointment or none at all, though it is discretionary, must still be based on correct findings of fact."
organisation; contract; fixed-term; non-renewal of contract; judicial review; discretion; mistake of fact; mistaken conclusion
"The rule is that for his complaint to be receivable the staff member must not only meet the time limit in Article VII(2) of [the Tribunal's] Statute but have properly followed the internal appeal procedure."
ILOAT reference: ARTICLE VII(2) OF THE STATUTE
receivability of the complaint; internal appeal; internal remedies exhausted; time limit; iloat statute; staff regulations and rules; condition