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Judgment No. 1539

Decision

1. The impugned decision of 15 September 1994 is quashed.
2. The case is sent back to the Secretary-General for determination of the complainant's entitlements under the Staff Regulations and Rules.

Consideration 7

Extract:

"Since the complainant was in Switzerland at the time of recruitment she was not locally recruited for employment at the Brussels Office. It is true that the Association was free to incorporate in the letters of appointment a clause saying that she was nevertheless deemed to have local status. [...] For want of a clause expressly prescribing local status the presumption is that the parties did not agree that she should have such status. The conclusion is that the contracts, read together with the Staff Regulations, set out all the terms and conditions of employment, which conferred non-local status on the complainant and gave the association no right or power to treat her as having any other. And even if there was doubt on that score it was the association, which was the source of all the relevant documents, that had the duty to resolve it."

Keywords

complainant; status of complainant; place of origin; organisation's duties; staff regulations and rules; terms of appointment; duty station; contract; offer; intention of parties; local status; non-local status

Consideration 12

Extract:

"The material issue is not what the complainant believed her status to be. Whatever she may have believed is immaterial to the meaning and effect of her contract. Her contract implicitly gave her non-local status".

Keywords

status of complainant; contract; local status; non-local status

Consideration 13

Extract:

"Inasmuch as the letters of appointment say nothing of 'local' or 'non-local' status, the Tribunal will treat the facts of the case as decisive. A contractual provision on status would be necessary only if the matter were uncertain or if the parties had agreed that she should have a status different to the status that the facts determine. Since such agreement would involve a waiver by the complainant of her rights of non-local status, it may not be presumed in the absence of clear evidence of such waiver."

Keywords

status of complainant; place of origin; evidence; appraisal of evidence; terms of appointment; contract; intention of parties; local status; non-local status

Dissenting opinion

Extract:

A dissenting opinion of Judge Julio Barberis is attached to the judgment.

Keywords

dissenting opinion



 
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