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Breach (235,-666)

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Keywords: Breach
Total judgments found: 168

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  • Judgment 2360


    97th Session, 2004
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 7

    Extract:

    The Organization considers that the claims for compensation for certain heads of injury were not submitted during the internal appeal proceedings and must therefore be dismissed as irreceivable. "[T]he claims to compensation for moral injury and for breach of the complainant's rights were put forward in the internal appeal, though in a different form, and are certainly receivable, even though some heads of injury, concerning the complainant's state of health in particular, had not been enlarged upon, since the complainant had stated in his appeal [...] that the decision he contested caused him 'undoubted material and moral injury'."

    Keywords:

    breach; claim; compensation; decision; difference; formal requirements; injury; internal appeal; internal remedies exhausted; material injury; moral injury; procedure before the tribunal; receivability of the complaint; right;



  • Judgment 2356


    97th Session, 2004
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 16

    Extract:

    The complainant claims damages for the injury resulting from the inclusion in her personnel file of a memorandum bearing negative remarks about her performance. "While there is no evidence whatsoever to support the complainant's claim that she was humiliated and that her future career prospects were adversely affected by this memorandum, the fact remains that the Appeals Committee found, and the Director-General accepted, that the document should be removed from her file. That necessarily implies an acceptance by the Organization that it had acted wrongly in putting it there in the first place. This entitles her to a nominal award of moral damages which the Tribunal evaluates at 500 euros."

    Keywords:

    acceptance; advisory opinion; breach; career; claim; executive head; general service category; grade; injury; internal appeals body; lack of evidence; moral injury; official; personal file; request by a party; respect for dignity; right; supervisor; unsatisfactory service;



  • Judgment 2352


    97th Session, 2004
    World Customs Organization (Customs Co-operation Council)
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 4-5

    Extract:

    The complainant's post was abolished and his appointment terminated. "It is clear from the [applicable] provisions that [...] the Staff Committee had to be consulted before the decision was taken to terminate the complainant's appointment. The purpose of consulting an advisory body, prior to terminating an official's appointment, is to allow that body to ensure that all the conditions for taking such a step are met, with a view to submitting a recommendation to the executive head. The Tribunal takes the view that it is established, by the evidence [...], that the Staff Committee was indeed consulted regarding the suppression of the [complainant's] post [...]. However, it considers that the Committee was not formally consulted with regard to the intention to terminate the complainant's appointment. [...] As the impugned decision was taken in breach of the applicable rules, it must be held unlawful and the Tribunal need not rule on the complainant's other pleas."

    Reference(s)

    Organization rules reference: Staff Regulation 12(a), Staff Rule 12.1(a) and Staff Circular No. 142

    Keywords:

    abolition of post; advisory body; advisory opinion; breach; condition; consequence; decision; due process; executive head; flaw; formal requirements; organisation's duties; post held by the complainant; provision; purpose; recommendation; staff regulations and rules; termination of employment; written rule;



  • Judgment 2350


    97th Session, 2004
    European Free Trade Association
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 2

    Extract:

    The complainant seeks the revision of certain rules and policies. EFTA submits that such a claim is irreceivable. "In this it is clearly correct. Relevantly, the Tribunal is competent only to hear complaints with respect to the non-observance of the terms of appointment or the provisions of EFTA's Staff Regulations and Rules."

    Keywords:

    amendment to the rules; breach; claim; competence of tribunal; complaint; iloat statute; provision; receivability of the complaint; staff regulations and rules; terms of appointment; vested competence;



  • Judgment 2315


    96th Session, 2004
    Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 28-29

    Extract:

    The complainant submits that the impugned decision is vitiated by a breach of due process of law, inasmuch as the recommendation of the Personnel Advisory Panel was kept from him. The Commission points out that this recommendation is confidential and, thus, there was no breach of due process. "Should a claim of confidentiality be made, for example, where a recommendation contains immaterial information on a third party, it is for the party making that claim to establish the grounds upon which the claim is based. In such a case, precautions may be taken to maintain confidentiality. In the present case, the Commission provides no grounds for its argument of confidentiality other than the need for the Personnel Advisory Panel to be able freely to discuss relevant matters. In a decision-making process which is subject to internal review and to the jurisdiction of this Tribunal, that is not an acceptable basis for a claim of confidentiality."

    Keywords:

    advisory body; breach; burden of proof; complaint; confidential evidence; decision; formal flaw; freedom of speech; grounds; iloat; internal appeal; procedure before the tribunal; recommendation; request by a party; right to reply;



  • Judgment 2313


    96th Session, 2004
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 5

    Extract:

    "The principle of equality requires that persons in like situations be treated alike and that persons in relevantly different situations be treated differently. In most cases involving allegations of unequal treatment, the critical question is whether there is a relevant difference warranting the different treatment involved. Even where there is a relevant difference, different treatment may breach the principle of equality if the different treatment is not appropriate and adapted to that difference."

    Keywords:

    breach; difference; equal treatment; general principle;



  • Judgment 2306


    96th Session, 2004
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 10 and 15

    Extract:

    As a general rule, damages for breach of contract, including wrongful termination of a contract of employment, are confined to the amount necessary to put the injured party in the position he or she would have enjoyed if the contract had been performed. Thus, ordinarily, in the case of wrongful termination, an employee is entitled to material damages consisting of salary and entitlements up to the date on which the contract would normally have expired. In this case "the Appeals Committee found that 'the [complainant's] dignity had been harmed by the administrative procedure leading to termination and that some redress for the material and moral injury he suffered [was] warranted' [...]. Notwithstanding that finding, the Committee only recommended payment of an amount equivalent to salary and allowances until the end of the complainant's fixed-term contract. As already explained, he was entitled to that amount for material damage. Thus, the effect of the recommendation of the Appeals Committee was to deny the complainant compensation for moral injury notwithstanding its finding that his dignity had been harmed. That was an error of law and, as the Director-General's decision was based on the recommendations of the Appeals Committee, it necessarily involves the same error of law."

    Keywords:

    abuse of power; allowance; amount; breach; compensation; consequence; contract; decision; effect; executive head; fixed-term; general principle; internal appeals body; material injury; misuse of authority; moral injury; official; procedure before the tribunal; recommendation; reconstruction of career; respect for dignity; right; salary; termination of employment;

    Consideration 21

    Extract:

    "Given the unsatisfactory nature of the administrative processes which led to the early termination of the complainant's contract and, in particular, the lack of due process, the want of transparency and the 'unreasonably brief' nature of those processes, [...] the complainant should be awarded moral damages in the amount of 5,000 United States dollars."

    Keywords:

    amount; breach; contract; moral injury; procedural flaw; procedure before the tribunal; right; right to reply; termination of employment;

    Consideration 8

    Extract:

    The complainant seeks the creation of an Office of the Ombudsman. "So far as concerns the claim [...], the complaint is clearly irreceivable. In this regard, it is sufficient to note that [the] claim was made for the first time in the complaint to the Tribunal and, accordingly, no decision could have been made on that issue prior to the filing of the complaint. More importantly, the claim does not concern the non-observance of the complainant's terms of appointment or of the provisions of the Staff Regulations of the [Organization], they being the only matters upon which this Tribunal is competent to adjudicate."

    Keywords:

    absence of final decision; breach; claim; competence of tribunal; consequence; contract; iloat; internal appeal; new claim; procedure before the tribunal; provision; receivability of the complaint; staff regulations and rules;



  • Judgment 2280


    96th Session, 2004
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 5-7

    Extract:

    Article 28, entitled "Assistance by the Organisation" and referred to by the complainant in his internal appeal, reads in part as follows:
    "(1) If, by reason of his office or duties, any permanent employee [...] or any member of his family living in his household is subject to any insult, threat, defamation or attack to his person or property, the Organisation shall assist the employee, in particular in proceedings against the author of any such act.
    (2) If a permanent employee [...] suffers injury by reason of his office or duties, the Organisation shall compensate him in so far as he has not wilfully or through serious negligence himself provoked the injury, and has been unable to obtain full redress."

    The complainant maintains that the defendant Organisation's refusal to reimburse the costs he incurred in the proceedings before the Dutch courts constitutes a breach of its duty of assistance. That duty, which is expressly provided for by the Service Regulations in the case of injury caused to a permanent employee by reason of his office or duties, should be seen, according to the complainant, within a broader framework and is reflected more generally in what is termed as the Organisation's duty of care for its permanent employees. The question then arises of whether the complainant was in a situation which entitled him to compensation under Article 28(2) of the Service Regulations.

    In the circumstances, the Organisation denies that the complainant should be exempted from the BPM. Since he had not been subjected to any insult, threat, defamation or attack, it argues that it owed him neither assistance nor the reimbursement of the costs incurred in his court proceedings, notwithstanding the ruling of the Court of Appeal in Amsterdam. It is the Tribunal's view that the Organisation adopted this position in good faith. By no means is it established that the complainant suffered injury by reason of his office or duties.

    Reference(s)

    Organization rules reference: Article 28 of the Service Regulations

    Keywords:

    breach; staff regulations and rules;



  • Judgment 2232


    95th Session, 2003
    Organisation for the Prohibition of Chemical Weapons
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 16

    Extract:

    The complainant, who had been the Organisation's Director-General, impugns the decision to terminate his appointment. "In accordance with the established case law of all international administrative tribunals, the Tribunal reaffirms that the independence of international civil servants is an essential guarantee, not only for the civil servants themselves, but also for the proper functioning of international organisations. In the case of heads of organisations, that independence is protected, inter alia, by the fact that they are appointed for a limited term of office. To concede that the authority in which the power of appointment is vested - in this case the Conference of the States parties of the Organisation - may terminate that appointment in its unfettered discretion, would constitute an unacceptable violation of the principles on which international organisations' activities are founded [...], by rendering officials vulnerable to pressures and to political change. The possibility that a measure of the kind taken against the complainant may, exceptionally, be justified in cases of grave misconduct cannot be excluded, but such a measure, being punitive in nature, could only be taken in full compliance with the principle of due process, following a procedure enabling the individual concerned to defend his or her case effectively before an independent and impartial body."

    Keywords:

    adversarial proceedings; appointment; breach; case law; condition; discretion; exception; executive body; executive head; fixed-term; general principle; hidden disciplinary measure; iloat; independence; internal appeals body; limits; member state; official; organisation; right to reply; safeguard; serious misconduct; termination of employment; tribunal;



  • Judgment 2222


    95th Session, 2003
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 5-6

    Extract:

    "The decisive factor behind the request for the complainant's diplomatic immunity to be waived [...] was not brought to the complainant's knowledge. That might have given him a chance to identify his accusers and, if need be, armed with that knowledge, to explain to his hierarchical superiors the reasons for the serious charges brought against him, before the decision was taken to waive his diplomatic immunity [...] by virtue of the right to information recognised by the tribunal's case law, particularly Judgment 1756, the organization, which held information that was so important to the complainant, had an obligation to bring it to his knowledge. It may be concluded from the above that the organization violated the complainant's right to be informed and injured his dignity and reputation."

    Reference(s)

    ILOAT Judgment(s): 1756

    Keywords:

    breach; case law; complainant; consequence; decision; duty to inform; elements; judgment of the tribunal; moral injury; organisation's duties; privileges and immunities; request by a party; respect for dignity; right; right to reply; supervisor; waiver of immunity;

    Consideration 3

    Extract:

    "Referring to the Tribunal's case law, in particular Judgments 70 and 1543, the defendant submits that the Tribunal's competence, ratione materiae, does not extend to disputes regarding the Director-General's discretion to waive diplomatic immunity. It is worth noting that the complainant does not in fact [...] challenge the decision to waive his diplomatic immunity in itself. He rather challenges the circumstances in which that decision was taken, which in his view violated his contractual rights or those arising from the general principles of law which should be observed by international organisations. Since the case law referred to by the defendant does not apply, the Tribunal is of the view that only a consideration of the merits of the case may show whether the complainant's allegations are well founded."

    Reference(s)

    ILOAT Judgment(s): 70, 1543

    Keywords:

    breach; case law; competence of tribunal; complainant; condition; decision; discretion; executive head; general principle; iloat; judgment of the tribunal; judicial review; organisation; organisation's duties; privileges and immunities; rebuttal; receivability of the complaint; right; terms of appointment; waiver of immunity;



  • Judgment 2172


    94th Session, 2003
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 20-21

    Extract:

    The organisation extended the complainant's probationary period and transferred her following an unfavourable performance appraisal report. She submits that her supervisors failed to observe the procedure for the completion of performance appraisal reports. The Tribunal considers that "even if her supervisor appeared to follow the proper procedure by sending her the appraisal report [...] before the second-level supervisor had signed it, in order for the procedure to be meaningful, the second-level supervisor should not have written her comments until the complainant's supervisor had answered the memorandum [in which the complainant contested her appraisal]. The process is not a dialogue if one party does not listen to another. in this case, the complainant's supervisor did not consider the complainant's comments when preparing the evaluation. The evidence thus supports the complainant's allegation that the proper procedure was not followed [...] the decision to extend the probationary period was based on a flawed appraisal and the complainant should have been confirmed in her post."

    Keywords:

    breach; consequence; decision; different appraisals; extension of contract; mistake of fact; performance report; period; post; probationary period; procedural flaw; procedure before the tribunal; reply; supervisor; transfer; unsatisfactory service; work appraisal;



  • Judgment 2170


    94th Session, 2003
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 12

    Extract:

    The Organisation withheld the complainant's salary increment on the grounds that more time was needed to assess her performance. The Tribunal concludes from the relevant provisions that "the requirement that an annual performance report be established prior to the scheduled date of the annual salary increment is a formal one. The salary increment [...] was not preceded by an evaluation [...] it is the Organisation's responsibility to see to it that [an annual performance] report is prepared on time. a staff member's right to an increment cannot be defeated by the organisation's failure to comply with its own rules."

    Keywords:

    applicable law; binding character; breach; consequence; date; grounds; increase; increment; increment withheld; official; organisation; organisation's duties; performance report; provision; refusal; right; salary; time limit; written rule;



  • Judgment 2129


    93rd Session, 2002
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 13

    Extract:

    "The complainants [state] that, according to the Tribunal's case law (see Judgment 1821, for example), adjustments to international civil servants' salaries must satisfy objective criteria of stability, foreseeability and transparency. The Tribunal considers that this line of precedent - concerning the determination of staff salaries, which is necessarily governed by very strict rules - is not entirely applicable to the determination of allowances granted for a specific purpose, such as that of covering expenses incurred by staff members on travel status. Even if it claims to be acting in the exercise of its discretion, and although the legal framework surrounding its action remains vague or non-existent, the administration must base its decisions on objective considerations and avoid breaching any of the guarantees protecting the independence of international civil servants."

    Reference(s)

    ILOAT Judgment(s): 1821

    Keywords:

    adjustment; allowance; analogy; breach; case law; compensatory allowance; compensatory measure; criteria; decision; discretion; duty to substantiate decision; grounds; independence; no provision; official; official travel; organisation's duties; purpose; safeguard; salary; travel expenses; written rule;



  • Judgment 2122


    93rd Session, 2002
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 8

    Extract:

    The complainant submitted her candidacy for a post of legal assistant. Her application was not taken into consideration because she did not fulfil the eligibility conditions set out in the notice of competition. She submits that there is a contradiction between the provisions of Staff Regulation Article 30 and those of Rule of Application No. 2 which sets out conditions for eligibility. The Tribunal finds "no contradiction between the provisions of Staff Regulation Article 30 and those of Rule of Application No. 2. [...] Contrary to what the complainant appears to suggest, the fact that Article 30(1) of the Staff Regulations says that the 'selection of candidates shall be based on qualifications' does not preclude the setting of eligibility conditions. [...] The eligibility conditions provided for in Rule No. 2 offend against no provision of the Staff Regulations. [...] The complainant did not meet all the conditions set in the notice of competition, and the Agency was therefore right to reject her application."

    Reference(s)

    Organization rules reference: ARTICLE 30 OF THE STAFF REGULATIONS GOVERNING OFFICIALS OF THE AGENCY

    Keywords:

    appointment; breach; candidate; competition; complainant; condition; criteria; degree; difference; enforcement; grounds; post; provision; refusal; staff regulations and rules; vacancy notice;



  • Judgment 2120


    93rd Session, 2002
    International Atomic Energy Agency
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 10-11

    Extract:

    A paragraph of a notice issued by the Organisation's secretariat stipulates that the spouse of a staff member shall normally not be employed in the same department as the staff member. The Tribunal considers that "the provision improperly discriminates between candidates for appointment based on their marital status and family relationship [...]. Discrimination on such grounds is contrary to the Charter of the United Nations, general principles of law and those which govern the international civil service, as well as international instruments on human rights. [...] All forms of improper discrimination are prohibited. What is improper discrimination? It is, at least in the employment context, the drawing of distinctions between staff members or candidates for appointment on the basis of irrelevant personal characteristics. Manifestly, the fact that two staff members may be married to each other is not relevant to their competence or the capacity of either one of them to fulfil their obligations. and, if it is thought that marital or intimate personal relationships between staff members may create management problems, such problems must be dealt with in ways that do not discriminate against either of them as a result of such relationships. The Tribunal notes that [the notice] as it is written, besides being too broad, is not even effective in dealing with the presumed possibility of undue influence or favouritism for it is silent on non-marital intimate relationships. It also fails to deal with marriages taking place after appointment".

    Keywords:

    administrative instruction; assignment; breach; candidate; competition; definition; difference; equal treatment; family relationship; general principle; grounds; international civil service principles; international instrument; official; organisation; post; provision; publication; qualifications; staff member's duties; terms of appointment; un charter; universal declaration of human rights;



  • Judgment 2091


    92nd Session, 2002
    European Southern Observatory
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 10 and 12

    Extract:

    The complainant had an accident while on duty. He signed a settlement agreement with the organisation and the CERN Pension Fund in order to solve the issue of the payment of an incapacity pension by the pension fund. "The ESO submits the complaint is not receivable as it does not allege non-observance of the terms of the complainant's appointment or of the [organisation]'s rules and regulations [...]. The Tribunal considers that since the settlement between the complainant, the [organisation] and the CERN Pension Fund arises out of the complainant's rights under his contract of employment as well as the Staff Rules and Regulations, it has jurisdiction to consider the effect of the trilateral agreement."

    Keywords:

    breach; cern pension fund; competence of tribunal; complainant; complaint; consequence; contract; definition; effect; iloat; incapacity; judicial review; organisation; payment; pension; professional accident; provision; receivability of the complaint; right; service-incurred; staff regulations and rules;



  • Judgment 2073


    91st Session, 2001
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 17

    Extract:

    The organisation modernized the Patent Office examination data management system. Consequently, superiors had access to individual examiner's data. The organisation failed to follow its own rules by delaying the adoption of a rule on data protection. "While the complainants have not shown any prejudicial consequences, the Tribunal nevertheless will sanction the [organisation]'s breach by a nominal global award of damages amounting to 1,000 German marks and a global award for costs amounting to 2,000 euros."

    Keywords:

    administrative delay; amount; breach; complainant; costs; damages; injury; lack of evidence; organisation's duties; supervisor; written rule;



  • Judgment 2066


    91st Session, 2001
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 8

    Extract:

    "There is breach of equal treatment only where staff members in an identical or comparable position in fact and in law receive different treatment from the organisation. Consequently, the right to equal treatment does not preclude amendment of a rule or the way in which it is applied. A new rule could be less favourable than the old one, and hence be subject to challenge, without necessarily impairing the right to equal treatment."

    Keywords:

    amendment to the rules; breach; definition; difference; enforcement; equal treatment; general principle; right; written rule;



  • Judgment 1996


    89th Session, 2000
    European Southern Observatory
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 6-7

    Extract:

    "In Judgment 1821 the Tribunal recalled that where a methodology refers to an external standard but grants discretion to the governing body to depart from that standard, the organisation has a duty to state proper reasons for such departure (see Judgment 1682 [...]). [...] However, departure from the index given as an orientation in the Staff Regulations requires more than just a statement of proper reasons. In order to protect staff against arbitrariness, the criteria relied on to deviate from the orientation suggested by the external index must be objective, adequate and known to the staff (see Judgment 1912, under 15)."

    Reference(s)

    ILOAT Judgment(s): 1682, 1821, 1912

    Keywords:

    amendment to the rules; breach; burden of proof; criteria; duty to substantiate decision; interpretation; rule of another organisation; staff regulations and rules;



  • Judgment 1973


    89th Session, 2000
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 5

    Extract:

    "The Tribunal has always held that personal promotion constitutes advancement on merit to reward someone for services of a quality higher than that ordinarily expected of the holder of the post. The granting of personal promotion is a discretionary decision which, as firm precedent has it, is subject to only limited review and will stand unless it shows a fatal flaw. In a case such as the present one, in which the general rules regarding personal promotions have been adopted and communicated to the staff, the appointing authority is bound by these rules and the Tribunal will consider any violation of them to be a fatal flaw."

    Keywords:

    breach; case law; discretion; executive head; flaw; judicial review; limits; patere legem; personal promotion; promotion;

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