Judgment No. 4398
The complaint is dismissed.
The complainant challenges the rejection of her claim for a second payment of the lump sum paid in the event of death or permanent invalidity under Article 84(1)b) of the Service Regulations.
death; lump-sum; complaint dismissed
It is noteworthy that in Judgment 2893, consideration 5, in reply to a complainant’s submissions that the internal appeal body did not afford him due process as he was not given an opportunity to put his case himself, or to present oral submissions through counsel, thereby denying him the opportunity to exercise his right to be heard, the Tribunal stated that neither the legal provisions governing that internal appeal body nor the general principles applicable to it require that a complainant be given an opportunity to present oral submissions in person or through a representative. The Tribunal also noted that, as the internal appeal body considered that it had gleaned sufficient information about the case from the parties’ written submissions and documentary evidence, the internal appeal body was under no obligation to invite the complainant to put his case orally, or indeed to accede to any request to that effect. Additionally, the Tribunal notes that in the present case the Appeals Committee invited the complainant to present written submissions and she did. The complainant presents no ground that puts into question the impartiality of the members of the Appeals Committee or the lawfulness of the summary procedure.
Jugement(s) TAOIT: 2893
internal appeal; due process
The Tribunal’s case law states that an administrative authority, when dealing with a claim, must generally base itself on the provisions in force at the time it takes its decision. Derogation from this general principle is however permitted where, among other things, the application of those provisions would result in a breach of the requirements of good faith, the non-retroactivity of administrative decisions and the protection of acquired rights (see, for example, Judgment 3214, consideration 14).
In consideration 14 of Judgment 2986, the Tribunal stated that a provision is retroactive only if it effects some change in existing legal status, rights, liabilities or interests from a date prior to its proclamation, but not if it merely alters the effects of this status or of these rights, liabilities and interests in the future. Accordingly, the principle of non-retroactive application of the 2008 amended Article 84(1)b) of the Service Regulations does not arise, as it was not retroactively applied to the subject case. It was the provision which was actually in force at the material time in 2011.
Jugement(s) TAOIT: 2986, 3214
The Tribunal [...] finds that the 2008 amendment to Article 84(1)b) [of the Service Regulations] did not breach the principle of acquired rights as the complainant contends. The Tribunal’s case law states that the amendment of a rule to an official’s detriment and without her or his consent amounts to breach of an acquired right when the structure of the contract of appointment is disturbed or there is impairment of any fundamental term of appointment in consideration of which the official accepted appointment (see, for example, Judgment 4195, consideration 7, and the case law cited therein). The Tribunal has established that the consideration whether an altered term of appointment is fundamental depends upon: (1) the nature of the term that is altered; (2) the reason for the change; and (3) the consequences of allowing or disallowing an acquired right (see, for example, Judgment 3375, consideration 12). These are compendious requirements which must all be met for the plea of breach of acquired rights to succeed.
Jugement(s) TAOIT: 3375, 4195