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Judgment No. 1317

Decision

1. THE IMPUGNED DECISION BY THE SECRETARY-GENERAL OF THE ITU IS SET ASIDE.
2. THE UNION SHALL PAY THE COMPLAINANT DAMAGES FOR ALL FORMS OF INJURY IN AN AMOUNT EQUIVALENT TO THREE YEARS' SALARY AND ALLOWANCES LESS ANY OCCUPATIONAL EARNINGS HE MAY HAVE HAD SINCE 30 SEPTEMBER 1990.
3. IT SHALL PAY HIM 5,000 SWISS FRANCS IN COSTS.
4. HIS OTHER CLAIMS ARE DISMISSED.

Considerations 20-21

Extract:

The ITU alleges that as a member of project personnel the complainant could not expect his appointment to be renewed after a restructuring exercise, unlike headquarters officials whose appointments were extended. "It is clear from the Staff Regulations and the relevant rules that the provisions on fixed-term appointments are in substance the same for both [headquarters and project personnel]. [...] The Union is mistaken in relying on [a rule] to rebut the complainant's charge of discrimination in favour of other staff".

Keywords

status of complainant; headquarters official; project personnel; equal treatment; staff regulations and rules; legitimate expectation; contract; fixed-term; reorganisation; non-renewal of contract

Considerations 22-23

Extract:

The ITU, relying on material provisions in the Staff Regulations and Rules, argues that the complainant's fixed-term appointment automatically expired when his contract ran out and that it had no need to take a decision on non-renewal. The Tribunal, having made clear that those provisions "have counterparts in the Staff Regulations and Staff Rules of several other international organisations", holds that its ruling on this case "must be in line with what proves to be an important feature of the common law of international organisations, or at least of those that define contracts by category in determining relations with their employees. [...] Consistent precedent has it that [...] a fixed-term contract", even a temporary one, "is to be treated as a distinct and challengeable administrative decision."

Keywords

decision; case law; law of contract; rule of another organisation; coordinated organisations; staff regulations and rules; contract; fixed-term; non-renewal of contract; notice

Consideration 23

Extract:

"Consistent precedent has it that even where an organisation's Staff Regulations say that a fixed-term contract is ipso facto extinguished on expiry non-renewal is to be treated as a distinct and challengeable administrative decision." After referring to Judgments 17 and 1040, the Tribunal observes that "that requirement is an indispensable safeguard of security of employment in the international civil service, which indeed, unlike many national civil services and some regional organisations, commonly grants fixed-term appointments."

Reference(s)

ILOAT Judgment(s): 17, 1040

Keywords

decision; right of appeal; case law; international civil service principles; domestic law; staff regulations and rules; contract; fixed-term; non-renewal of contract; notice; safeguard

Consideration 24

Extract:

See Judgments 956, considerations 2 and 3, 1262, consideration 4, and 1273, consideration 8.

Reference(s)

ILOAT Judgment(s): 956, 1262, 1273

Keywords

decision; duty to substantiate decision; case law; right to reply; due process; contract; fixed-term; non-renewal of contract; notice; judicial review; discretion; organisation's interest; flaw; formal flaw; procedural flaw; mistake of fact; misuse of authority

Consideration 28

Extract:

The organisation says that the non-renewal of the complainant's appointment was warranted by restructuring operations in its regional offices. "The duty to state the reasons for a decision forms part of any due administrative process. The Tribunal is not questioning that there was an objective need for the reforms the Union brought in [but] the Union ought to have explained to him why the reforms warranted removing him. It did not. The ITU ignored a long line of precedents on non-renewal procedure."

Keywords

duty to substantiate decision; case law; contract; fixed-term; reorganisation; non-renewal of contract; discretion; organisation's interest

Considerations 31 and 34

Extract:

"An internal appeal procedure that works properly is an important safeguard of staff rights and social harmony in an international organisation [...]. The Union is wholly to blame for [the material] shortcomings. The Appeal Board is set up under the Staff Regulations and the [organisation] has a duty to keep it at all times in proper working order."

Keywords

internal appeals body; administrative delay; internal appeal; right of appeal; organisation's duties; safeguard

Considerations 37-39

Extract:

The complainant seeks reinstatement in a post he held under a fixed-term appointment. "Reinstatement is a form of restitutio in integrum that will afford proper redress when the holder of an indefinite appointment has been wrongfully dismissed. [...] The Tribunal may consider ordering the reinstatement even of someone who held a fixed-term appointment provided that the circumstances are exceptional". Having referred to the relevant case law on exceptions, the Tribunal observes that there is nothing exceptional in the present case and dismisses his main claim "since reinstating him would in the circumstances be tantamount to direct interference by the Tribunal in the structuring of the ITU's secretariat".

Keywords

case law; contract; reinstatement; fixed-term; permanent appointment; non-renewal of contract; termination of employment

Consideration 38

Extract:

"A fixed-term appointment will automatically cease to have effect upon expiry. But according to the case law a contract of service, even if for a fixed term, creates in law a relationship of employment; that relationship exists in an administrative context and is subject to a set of staff regulations; and there may therefore be requirements or consequences that go beyond the bounds of the contract as such."

Keywords

case law; law of contract; contract; fixed-term; consequence; effect



 
Last updated: 19.08.2020 ^ top