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Judgment No. 4273

Decision

The complaints are dismissed, as are the applications to intervene.

Summary

The complainants challenge their classification in the new career structure established following the 2015 five-yearly review.

Judgment keywords

Keywords

post classification; complaint dismissed

Consideration 1

Extract:

Since the complaints include almost identical pleadings, concern the same organisation, advance the same arguments and make similar claims, they will be joined and dealt with in a single judgment.

Keywords

joinder

Consideration 3

Extract:

The complainants seek oral proceedings, but the Tribunal considers it is sufficiently informed of the cases by the content of the written submissions and does not regard oral proceedings as necessary.

Keywords

oral proceedings

Consideration 5

Extract:

The Tribunal notes that these arguments, which do not appear to have been raised in the internal appeal proceedings, are, for the most part, set out in the section of the written submissions presenting the facts of the case. It is not therefore clear whether the complainants wish to raise them as pleas challenging the lawfulness of the general decision of the Council of CERN [...].

Keywords

complaint; claim; legal brief

Consideration 6

Extract:

According to the Tribunalís case law, an organisation has broad discretion when altering salary structures and grading systems (see Judgments 2778, under 7, 3921, under 11, and 4134, under 26 and 49) and classifying officials individually (see, for example, Judgment 1495, under 14). Decisions on such matters are therefore subject to only limited review by the Tribunal, which will censure them only if they have been taken in breach of a rule of form or procedure, if they are based on an error of fact or law, if some essential fact was overlooked, if clearly mistaken conclusions were drawn from the evidence or if there was misuse of authority.

Reference(s)

ILOAT Judgment(s): 1495, 2778, 3921, 4134

Keywords

grade; salary; judicial review; discretion

Consideration 10

Extract:

[A]n organisation is entitled to introduce a career system unlike that in any other organisation so that it can meet its own unique requirements. It is thus difficult to see how a comparison could be undertaken.

Keywords

grade

Consideration 13

Extract:

The principle of estoppel implies, by definition, that a party has been induced to act to its detriment by relying on some statement or conduct of the other party (see Judgments 2873, under 7, and 3614, under 18).

Reference(s)

ILOAT Judgment(s): 2873, 3614

Keywords

estoppel

Consideration 16

Extract:

The actual design of the new career structure (for example, the structure of grades and their number) and the new merit recognition system (for example, the choice of financial incentives and their amount) falls within the Organizationís discretion and, given the Tribunalís limited power of review in this matter, it is not for the Tribunal to substitute its assessment for that of the Organization (see Judgments 2778, under 7, 3921, under 11, and 4134, under 26 and 49).

Reference(s)

ILOAT Judgment(s): 2778, 3921, 4134

Keywords

career; discretion

Consideration 18

Extract:

As the Tribunal has pointed out on a number of occasions, the staff members of international organisations are not entitled to have all the conditions of employment or retirement laid down in the provisions of the staff rules and regulations in force at the time of their recruitment applied to them throughout their career and retirement. Most of those conditions can be altered during or after an employment relationship as a result of amendments to those provisions (see Judgments 3876, under 7, 3909, under 12, and 4028, under 13). The Tribunal has consistently held that the position is of course different if, having regard to the nature and importance of the provision in question, the complainant has an acquired right to its continued application. However, the amendment of a provision governing an officialís situation to her or his detriment constitutes a breach of an acquired right only when such an amendment adversely affects the balance of contractual obligations, or alters fundamental terms of employment in consideration of which the official accepted an appointment, or which subsequently induced her or him to stay on. In order for there to be a breach of an acquired right, the amendment to the applicable text must therefore relate to a fundamental and essential term of employment within the meaning of Judgment 832 (see, for example, Judgments 2089, 2682, 2986, 3135, 3909 and 4028).

Reference(s)

ILOAT Judgment(s): 2089, 2682, 2986, 3135, 3876, 3909, 4028

Keywords

acquired right

Consideration 20

Extract:

According to the Tribunalís case law, an administrative practice cannot continue to apply when it has been expressly abolished by a legal provision (see Judgment 3524, under 5).

Reference(s)

ILOAT Judgment(s): 3524

Keywords

practice

Consideration 22

Extract:

The Tribunal has consistently held that the principle of equal treatment requires, on the one hand, that officials in identical or similar situations be subject to the same rules and, on the other, that officials in dissimilar situations be governed by different rules defined so as to take account of this dissimilarity (see, for example, Judgments 1990, under 7, 2194 under 6(a), 2313, under 5, 3029, under 14, 3787, under 3, and 3900, under 12).

Reference(s)

ILOAT Judgment(s): 1990, 2194, 2313, 3029, 3787, 3900

Keywords

equal treatment

Consideration 28

Extract:

[I]t is true that the statements that the procedures were transparent, foreseeable and documented and that the procedures in force were complied with are, on their own, overly broad formulations which do not fulfil the duty to state reasons.

Keywords

motivation

Consideration 28

Extract:

Ordinarily, the Tribunal would [...] set aside the Director-Generalís decisions [...] endorsing the recommendations of the Joint Advisory Appeals Board and refer the cases back to the Organization for the Board to deliver new, properly reasoned opinions.
However, it will not do so here since, in the proceedings before the Tribunal, the complainants have raised Ė and expounded at length Ė their pleas concerning the procedural flaws and lack of transparency to which the Joint Advisory Appeals Board did not respond. As the Tribunal has examined these pleas, there is no need to refer the cases back to the Board.

Keywords

case sent back to organisation

Consideration 29

Extract:

The complainants seek an award of 2,000 euros each in moral damages. They contend that persons not involved in the procedure were informed by the Administration of their internal appeals without their consent, and that this breach of confidentiality caused them moral injury. They refer to the letter [...], copied to their Head of Department, in which the Head of the Human Resources Department stated that, following the Director-Generalís decisions [...], they would be contacted shortly with a view to arranging a career review. That letter did not mention that the decisions [...] were the decisions taken following their internal appeals and did not disclose their content. It was perfectly proper for their Head of Department to be informed by the Organization of their upcoming career reviews.

Keywords

confidentiality

Consideration 30

Extract:

[T]he complaints must be dismissed in their entirety. In consequence, the applications to intervene must also be dismissed.

Keywords

intervention

Consideration 13

Extract:

The principle that similar acts require similar procedures means that the amendment of a rule must respect the same process which was used for its adoption (see Judgment 1897, under 11(a)).

Reference(s)

ILOAT Judgment(s): 1897

Keywords

parallelism of form



 
Last updated: 14.10.2020 ^ top