Judgment No. 4191
The complaint is dismissed.
The complainant challenges the rejection of his application for payment of an expatriation allowance.
allowance; expatriation allowance; complaint dismissed
[T]he Tribunal has explained the rationale and context for the grant of the expatriation allowance, and given guidance as to the interpretation of the terms “permanently resident” for the purpose of Article 72(1)(b), in [...] Judgment 2865, under 4(b) [...].
ILOAT Judgment(s): 2865
interpretation; residence; expatriation allowance
The Tribunal’s case law has it that a permanent employee is “permanently resident in the [duty] country” if she or he had simply resided or lived there during the relevant period. The test is one of simple residence (see Judgments 1099, under 8, and 2596, under 3). [...] The fact that during the employee’s residence in the duty country she or he did not pay taxes there is also irrelevant (see, for example, Judgment 1099, under 8). Neither is it relevant that the employee travelled a lot due to the nature of her or his work (see, for example, Judgment 2596, under 5) so long as the employee has not interrupted her or his residence in the duty country in the sense stated in Judgment 2865, under 4(b). Neither is the status of the employee’s residence relevant in the sense stated, for example, in Judgment 2214, under 3.
ILOAT Judgment(s): 1099, 2214, 2596, 2865
The issue is whether, if in [the] three-year period there is service which is not to be counted, the consequence is that the expatriation allowance is payable, or whether that service is ignored when identifying the end point of the three-year period counting backwards. The answer does not clearly emerge from the text, but does from a consideration of the purpose of the provision and the rationale for the benefit. The provision is intended to compensate employees who have left their permanent home in one country to take up employment in another (see Judgment 2925, under 3). That purpose is best served by the latter approach to the meaning of the provision, rather than by the former approach, which would reward a person who has mainly resided in the duty country, even for decades, but had for a period within the three years, perhaps extremely briefly, been, for example, employed by an international organisation.
ILOAT Judgment(s): 2925
interpretation; expatriation allowance