Judgment No. 3994
1. CERN shall pay the complainant moral damages in the amount of 5,000 Swiss francs.
2. It shall also pay her costs in the amount of 3,000 Swiss francs.
3. All other claims are dismissed.
The complainant challenges CERN’s refusal to recognise the illness from which she says she suffers as occupational.
complaint allowed; illness; service-incurred
The Tribunal recalls that according to consistent precedent, it may not replace the medical findings of medical experts with its own assessment. However, it does have full competence to say whether there was due process and to examine whether the medical reports on which administrative decisions are based show any material mistake or inconsistency, overlook some essential fact or plainly misread the evidence (see, for example, Judgment 1284, under 4).
ILOAT Judgment(s): 1284
illness; medical opinion; medical examination; judicial review
While the Tribunal’s case law obliges international organisations to take appropriate measures to protect their officials’ health and safety (see Judgment 3689, under 5; see also Judgments 3025, under 2, and 2706, under 5), the measures requested must be reasonable and based on objective evidence of their necessity.
ILOAT Judgment(s): 2706, 3025, 3689
duty of care
Concerning access to the medical file, the Tribunal recalls that, “while there may be some cases in which it is not advisable to allow staff members to have full access to their medical file at a particular point in time (and the decision to deny access temporarily must be fully justified and reasonable), the right to transparency as well as the general principle of an individual’s right to access personal data concerning him or her mean that a staff member must be allowed full and unfettered access to his or her medical file and be provided with copies of the full file when requested (paying the associated costs as necessary)” (see Judgment 3120, under 7).
In the present case, CERN does not say why it allowed the complainant only partial access to her medical file. Accordingly, the Organization breached its duty of transparency.
The Tribunal recalls [...] that when the executive head of an organisation adopts the recommendations of an internal appeal body, she or he is under no obligation to give any further reasons in his or her decision than those given by the appeal body itself (see Judgment 2092, under 10).
In this case, the Director-General followed the recommendation of the Joint Advisory Appeals Board. In accordance with the principle cited above, she was not obliged to engage in any “further questioning”, despite what the complainant maintains.
ILOAT Judgment(s): 2092
duty to substantiate decision; impugned decision