Judgment No. 392
1. THE DECISION OF THE DIRECTOR-GENERAL OF 19 AUGUST 1978 IS QUASHED.
2. THE CLAIM FOR BACK PAY IS DISMISSED.
3. THE ORGANIZATION IS ORDERED TO PAY THE COMPLAINANT 2,000 UNITED STATES DOLLARS AS PARTIAL REIMBURSEMENT OF COSTS.
Abandonment implies the physical failure to perform a contractual duty and the intention to abandon future performance. The applicable provision allows the intention to be assumed from the fact of absence without reasonable explanation for fifteen days. "The explanation has not got to be one that exonerates the staff member from breach of contract or from other disciplinary measures, but it has to be one which negatives the intention to abandon."
abandonment of post; unauthorised absence; definition; presumption
Considerations 4, 6, 7 and 8
Abandonment presupposes intention, which is to be assumed, under the applicable provision, from the fact of absence without explanation for fifteen days. The complainant failed to report as ordered to her chief. "By challenging the order in the manner prescribed by the Regulations, the complainant was affirming the contract, not abandoning it." An appeal entered for the purpose of delay will not do. The complainant had a bona fide case. The decision to terminate her appointment for abandonment of post must therefore be quashed.
decision quashed; termination of employment; abandonment of post; unauthorised absence
The Tribunal believes that there was no abandonment of post because the complainant challenged her assignment in the prescribed manner. The decision is therefore quashed. "To succeed in a claim for reinstatement or compensation, [the complainant] would have to satisfy the Tribunal that the assignment was in fact invalid; the Tribunal in its Judgment No. 375 has decided the contrary."
Jugement(s) TAOIT: 375
procedure before the tribunal; assignment; transfer; abandonment of post; refusal
A provision exists for the termination of appointment in the event of abandonment of post. The rule must be interpreted in the light of the ordinary principles of contract law. "If one party to a contract fails or refuses to perform his duties under the contract in circumstances which show that he does not intend ever again to resume them, i.e. show [...] that he is abandoning his post, the other party is entitled to treat the contract as at an end".
law of contract; abandonment of post; condition; consequence