Judgment No. 3734
1. The Director General’s 2 October 2013 decision is set aside as are his earlier decisions of 8 July 2013 and 24 May 2013.
2. The IAEA shall pay the complainant moral damages in the amount of 7,000 euros.
3. The IAEA shall pay the complainant costs in the amount of 4,000 euros.
4. All other claims are dismissed.
The complainant challenges the IAEA’s decision not to pay her compensation for the loss of earning capacity beyond the age of 60.
complaint allowed; decision quashed; loss of opportunity
The principles of statutory interpretation are well settled in the case law. The primary rule is that words are to be given their obvious and ordinary meaning and any ambiguity in a provision should be construed in favour of the staff member and not the organization (see, for example, Judgments 2276, under 4, and 3310, under 7). It is the obvious and ordinary meaning of the words in the provision that must be discerned and not just a phrase taken in isolation. Article 20(a) establishes the duration of the entitlement to compensation in cases where the loss of earning capacity is determined to be total. It provides that an official is entitled to this compensation from the date on which payment ceases under Article 17(a) and “for so long as the disability continues”. The provision is clear and unambiguous. The entitlement to compensation is contingent on the presence of the disability only. Moreover, if the drafter of the provisions had intended that the entitlement to the payment of the compensation terminate upon reaching the age of retirement, it would have been explicitly stated.
ILOAT Judgment(s): 2276, 3310
As stated in Judgment 2702, under 11, “[i]t is well established that the party seeking to rely on an unwritten rule bears the onus of proving the substance of the rule. This applies equally to a party seeking to rely on an established practice.” Beyond stating that its established practice is consistent with its interpretation, the IAEA has not adduced any proof of the existence or nature of the practice. It may also be added that a practice cannot become legally binding if it is at odds with a statutory provision already in force, as is the case here (see, for example, Judgment 3546, under 8, and the judgments cited therein).
ILOAT Judgment(s): 2702, 3546