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Intention of parties (325,-666)

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Keywords: Intention of parties
Total judgments found: 36

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  • Judgment 4207


    129th Session, 2020
    International Atomic Energy Agency
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns the Director General’s decision to endorse the conclusion of the Office of Internal Oversight Services that it was unable to make a conclusive determination on her sexual harassment claim and to reject her related request for damages.

    Consideration 20

    Extract:

    Having regard to the distinction mentioned in consideration 14 [of the judgment] between a claim of harassment and a report of misconduct based on an allegation of harassment, the DDG-MT’s decision concerning the complainant’s claim of harassment is fundamentally flawed. The DDG-MT proceeded on the assumption that an allegation of harassment by the aggrieved staff member must not only be borne out by specific acts, the burden of proof being on the reporter of the harassment, but must also prove that the alleged perpetrator of the harassment acted with intent. This in turn resulted in the DDG-MT incorrectly applying the “beyond a reasonable doubt” standard of proof in his consideration of the complainant’s claim of harassment. It is noted that the Tribunal has specifically rejected this assumption that intent on the part of the alleged perpetrator is required in order to establish harassment (see, for example, Judgments 2524, consideration 25, 3233, consideration 6, and 3692, consideration 18, and the case law cited therein). The Tribunal’s case law states that the applicable standard of proof for a finding of harassment in a case such as this is not “beyond a reasonable doubt” but a less onerous standard (see Judgment 3725, consideration 14).

    Reference(s)

    ILOAT Judgment(s): 2524, 3233, 3692, 3725

    Keywords:

    harassment; intention of parties; sexual harassment; standard of proof;



  • Judgment 4053


    126th Session, 2018
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to refuse her request to withdraw her resignation.

    Consideration 7

    Extract:

    Even if, as appears to be the case, the complainant was working in an environment that had a significant negative effect on her sense of well-being and that either contributed to or precipitated the decision to resign, it does not follow that she did not understand the effect of, or lacked the capacity to write, the resignation letter [...].

    Keywords:

    intention of parties;



  • Judgment 4018


    126th Session, 2018
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision no longer to pay him an expatriation allowance.

    Consideration 6

    Extract:

    It is plain from the evidence in the file that the clause providing for the granting of the expatriation allowance to the complainant was deliberately included in the letter of appointment by the signatory parties and was not the result of a mere administrative error, as Eurocontrol now tries to argue.
    The complainant has produced an exchange of emails with the Head of the Engineering Division which unambiguously prove that his recruitment was preceded by negotiations precisely concerning the granting of the expatriation allowance and that the Eurocontrol Administration had agreed to grant him this benefit in order that his remuneration would remain similar to that which he had previously received in the private sector. [...]
    Similarly, Eurocontrol’s argument that the complainant’s letter of appointment did not explicitly refer to an agreement between the parties on this subject “notwithstanding the rules and regulations” does not mean that no such informal agreement existed, since it is hardly likely that an organisation would wish to draw attention in a contract to the unlawful nature of one of the clauses thereof.
    In view of the foregoing, the Tribunal will not accept the Organisation’s submission that the clause providing for the benefit in question was inserted into the complainant’s contract solely as a result of an accidental error in applying Article 4(1) of Rule of Application No. 7. In this connection, the Organisation explains that the Administration of the Maastricht Centre wrongly believed that the complainant’s services while he was placed at the disposal of Eurocontrol by private companies prior to his recruitment should be regarded as services for an international organisation within the meaning of Article 4(1), and that they were therefore not to be taken into account when determining whether he was entitled to receive the expatriation allowance. In view of the evidence on file, the Tribunal is of the opinion that, at best, the purpose of this somewhat surprising alleged misunderstanding was to contrive a reason for granting the complainant a benefit which the Organisation had purposefully decided to give him, in breach of the applicable text, in order to be able to offer him a level of remuneration which would persuade him to accept his appointment.

    Keywords:

    clerical error; contract; intention of parties;



  • Judgment 3887


    124th Session, 2017
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests the decision to dismiss him, for misconduct, with immediate effect and with reduction of pension entitlements.

    Consideration 13

    Extract:

    The complainant’s refusal to fulfill his obligations with regard to his work as an examiner is well-established. However, the President’s decision to dismiss the complainant under Article 93(2)(f) of the Service Regulations is vitiated by the fact that neither the President, nor the Disciplinary Committee could have made a proper assessment of the allegations without taking into account whether the complainant acted intentionally, and in control of his faculties, or if the complainant suffered from a mental illness that prevented him from behaving in accordance with his obligations as a permanent employee.

    Keywords:

    intention of parties; termination of employment;



  • Judgment 3159


    114th Session, 2013
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant unsuccessfully challenges the decision to abolish his post.

    Considerations 9, 19 and 20

    Extract:

    "The terms of Staff Rule 1050.2 are clear. They impose a duty on the Organization in specified circumstances. The duty is to use reasonable efforts to reassign a staff member whose post is being abolished. The specified circumstances are, as to a staff member on a fixed-term appointment, that the staff member has served “for a continuous and uninterrupted period of five years or more”. The expression “continuous and uninterrupted” fairly emphatically focuses attention on service of a particular character. There is no basis in the language of the Staff Rule to treat its operation as ambulatory in the sense that a person who has been on a fixed-term appointment but has not served in that capacity for a continuous and uninterrupted period of at least five years is nonetheless a person to whom the Organization, by operation of the Rule, is under a duty to make reasonable efforts to reassign. [...] However, a staff rule cast in terms of Staff Rule 1050.2 does not preclude the possibility that the Organization is under a duty requiring proactive conduct in circumstances not comprehended by the Rule itself. WHO does not put in issue that there is a general duty of loyalty, as the complainant contends. What might be required of an organisation in broadly similar circumstances was considered by the Tribunal in Judgment 2902. [...] The same reasoning can be applied in the present case. The complainant and WHO found it mutually acceptable, and with benefits accruing to both, for the complainant to be employed on a series of short-term appointments for much of the complainant’s employment. But the complainant nonetheless had worked, in a real and practical sense, for over a decade and a half in the service of the Organization. In those circumstances, WHO was obliged to explore with the complainant other employment options prior to his separation."

    Reference(s)

    Organization rules reference: Staff Rule 1050.2
    ILOAT Judgment(s): 2902

    Keywords:

    abolition of post; contract; duration of appointment; enforcement; fixed-term; general principle; intention of parties; non-renewal of contract; organisation's duties; reassignment; short-term; staff regulations and rules; successive contracts;



  • Judgment 2906


    108th Session, 2010
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 7

    Extract:

    Following his promotion to grade A5, the complainant was informed that his promotion to that grade was due to a clerical error and that the Administration's intention was to promote him to grade A4(2). Thus, his promotion to grade A5 was reversed. He challenged that decision but the President decided to maintain it. The Tribunal found that his promotion to grade A5 stemmed from a purely factual error and not from the Administration's genuine intention and that it could therefore be reversed. It nevertheless awarded him compensation for moral injury.
    "The nub of this case is whether the President could lawfully reverse the decision [...] to promote the complainant to grade A5 [...]. Since the Service Regulations do not contain any specific provisions governing the conditions for the reversal or revocation of administrative decisions, this question can be settled only by referring to the general principles of law applied by the Tribunal."

    Keywords:

    decision; individual decision; intention of parties; mistake of fact; no provision; promotion; staff regulations and rules;

    Consideration 11

    Extract:

    "Since the decision to promote the complainant to grade A5 stemmed from a clerical error, i.e. a purely factual error, and not from a genuine intention of its author, the Tribunal considers that it did not create rights for the person concerned and that it could therefore be subsequently reversed.
    Indeed, one of the essential requirements of any administrative decision is that it should be consistent with its author's intention. Consequently, where that is not the case, it is important that the impact of the decision should be limited as much as possible, even though its existence cannot be denied. Similar considerations led the Tribunal to set aside the application of a decision resting on a purely factual error in an earlier case concerning the repayment of an indemnity which had been paid in error (see Judgment 1111, under 5). Although the instant case concerns a somewhat different issue, it is likewise appropriate to consider that the decision in question, which stems from a factual error, could not create any rights and that the competent authority was therefore entitled to reverse it at any time. Indeed, the opposite would be liable to conflict not only with the interests of the organisation concerned but also with the principle of equal treatment of officials, insofar as it could, in some extreme cases, result in preposterous individual decisions reached by pure oversight becoming final."

    Reference(s)

    ILOAT Judgment(s): 1111

    Keywords:

    decision; equal treatment; individual decision; intention of parties; mistake of fact; organisation's interest; promotion; right;



  • Judgment 2865


    108th Session, 2010
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 4(b)

    Extract:

    Article 72 of the Service Regulations for Permanent Employees of the European Patent Office, the EPO's secretariat, concerns the expatriation allowance. Article 72(1) reads as follows:
    "An expatriation allowance shall be payable to permanent employees who, at the time they take up their duties or are transferred:
    a) hold the nationality of a country other than the country in which they will be serving, and
    b) were not permanently resident in the latter country for at least three years, no account being taken of previous service in the administration of the country conferring the said nationality or with international organisations."
    "The country in which the permanent employee is permanently resident, within the meaning of Article 72(1)(b) of the Service Regulations, is that in which he or she is effectively living, that is to say the country with which he or she maintains the closest objective and factual links. The closeness of these links must be such that it may reasonably be presumed that the person concerned is resident in the country in question and intends to remain there. A permanent employee interrupts his or her permanent residence in a country when he or she effectively leaves that country with the intention - which must be objectively and reasonably credible in the light of all the circumstances - to settle for some length of time in another country (see Judgment 2653, under 3)."

    Reference(s)

    Organization rules reference: Article 72(1) of the Service Regulations for Permanent Employees of the European Patent Office
    ILOAT Judgment(s): 2653

    Keywords:

    amendment to the rules; appointment; condition; definition; duty station; intention of parties; member state; nationality; non-resident allowance; official; organisation; payment; period; residence; staff regulations and rules; transfer;



  • Judgment 2861


    107th Session, 2009
    World Meteorological Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 37

    Extract:

    "It is not possible to characterise administrative decisions as harassment simply because they are unlawful. In this regard, it was pointed out in Judgments 2370 and 2745 that actions or decisions that result 'from honest mistake or even [...] inefficiency' cannot constitute harassment. And if administrative decisions are taken for improper purposes, that is a matter that is more appropriately dealt with by way of moral damages, rather than on the basis of harassment."

    Reference(s)

    ILOAT Judgment(s): 2370, 2745

    Keywords:

    complaint allowed; complaint allowed in part; good faith; grounds; injury; intention of parties;



  • Judgment 2848


    107th Session, 2009
    United Nations Industrial Development Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 20

    Extract:

    "As the Tribunal reiterated in Judgment 2592, under 14, it is well established in the case law that «[t]here is a binding contract if there is manifest on both sides an intention to contract and if all the essential terms have been settled and if all that remains to be done is a formality which requires no further agreement»."

    Reference(s)

    ILOAT Judgment(s): 2592

    Keywords:

    acceptance; binding character; contract; effect; intention of parties; law of contract; offer;



  • Judgment 2757


    105th Session, 2008
    International Criminal Court
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 13

    Extract:

    "Malice is generally described either as the absence of good faith or as acting from improper motive. Frequently, the absence of a belief on reasonable grounds is sufficient to base an inference of malice. So, too, is the communication of information that is defamatory of a person to those who do not have a legitimate interest in obtaining that information."

    Keywords:

    communication to third party; complaint allowed; complaint allowed in part; definition; good faith; grounds; intention of parties;

    Consideration 9

    Extract:

    "In the context of 'serious misconduct', the question whether a statement was made falsely is not simply whether the statement is true or false. A statement made innocently, which turns out to be false, does not constitute serious misconduct. A statement is made innocently if the person concerned honestly believes on reasonable grounds that the statement is true. Conversely, for the purposes of serious misconduct, a statement is falsely made if it is both untrue and the person concerned did not believe on reasonable grounds that it was true."

    Keywords:

    complaint allowed; complaint allowed in part; definition; grounds; intention of parties; judicial review; misrepresentation; serious misconduct;



  • Judgment 2751


    105th Session, 2008
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 9

    Extract:

    "The intention with which a statement is made is not necessarily determinative of the question whether a statement that is wholly irrelevant is also one that can serve no proper purpose." The complainant represented three colleagues whose complaints were considered by the Tribunal in Judgment 2514. In its replies the Organisation had stated that, by reason of the time he had spent providing legal assistance to staff members, the complainant's work as an examiner had been less satisfactory than it should have been. "That was defamatory. It was also inconsistent with the duty of the EPO to respect the complainant's dignity. In the context of the other comments that were within the limits of the privilege that attaches to proceedings before the Tribunal, it carried the threat of possible administrative consequences for the complainant's employment. Such a remark can serve no proper purpose. Accordingly, it was not privileged and the complainant is entitled to seek relief with respect to it."

    Reference(s)

    ILOAT Judgment(s): 2514

    Keywords:

    breach; compensation; complaint allowed; complaint allowed in part; consequence; counsel; iloat; insurance benefit; intention of parties; organisation; organisation's duties; privileges and immunities; procedure before the tribunal; purpose; request by a party; respect for dignity; right; security of tenure; staff representative;



  • Judgment 2745


    105th Session, 2008
    International Atomic Energy Agency
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 19

    Extract:

    "It was said in Judgment 2524 that, although harassment and mobbing do not require bad faith or prejudice or other malicious intent, 'behaviour will not be characterised as harassment or mobbing if there is a reasonable explanation for the conduct in question'. Thus, it was said in Judgment 2370 that conduct that 'had a valid managerial purpose or was the result of honest mistake, or even mere inefficiency' would not constitute harassment. However and as pointed out in Judgment 2524, 'an explanation which is prima facie reasonable may be rejected if there is evidence of ill will or prejudice or if the behaviour in question is disproportionate to the matter which is said to have prompted the course taken'."

    Reference(s)

    ILOAT Judgment(s): 2370, 2524

    Keywords:

    bias; condition; conduct; consequence; definition; evidence; good faith; grounds; intention of parties; judgment of the tribunal; mistake of fact; organisation's duties; proportionality; qualifications; respect for dignity;



  • Judgment 2657


    103rd Session, 2007
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 5

    Extract:

    The complainant contests the decision not to appoint him to a post as examiner at the European Patent Office on the grounds that he did not meet the physical requirements for the post. The Organisation submits that the Tribunal is not competent to hear complaints from external applicants for a post in an organisation that has recognised its jurisdiction. "However regrettable a decision declining jurisdiction may be, in that the complainant is liable to feel that he is the victim of a denial of justice, the Tribunal has no option but to confirm the well-established case law according to which it is a court of limited jurisdiction and 'bound to apply the mandatory provisions governing its competence', as stated in Judgment 67, delivered on 26 October 1962. [...]
    It [can be inferred from Article II of the Statute of the Tribunal] that persons who are applicants for a post in an international organisation but who have not been recruited are barred from access to the Tribunal. It is only in a case where, even in the absence of a contract signed by the parties, the commitments made by the two sides are equivalent to a contract that the Tribunal can decide to retain jurisdiction (see for example Judgment 339). According to Judgment 621, there must be 'an unquestioned and unqualified concordance of will on all terms of the relationship'. That is not the case, however, in the present circumstances: while proposals regarding an appointment were unquestionably made to the complainant, the defendant was not bound by them until it had established that the conditions governing appointments laid down in the regulations were met."

    Reference(s)

    ILOAT reference: Article II of the Statute
    ILOAT Judgment(s): 67, 339, 621

    Keywords:

    appointment; candidate; case law; competence of tribunal; complaint; condition; consequence; contract; declaration of recognition; definition; exception; external candidate; formal requirements; grounds; handicapped person; iloat statute; intention of parties; interpretation; medical examination; medical fitness; open competition; organisation; post; proposal; provision; refusal; terms of appointment; vested competence; written rule;



  • Judgment 2567


    101st Session, 2006
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 5

    Extract:

    "[W]here a doubt arises regarding the meaning which should reasonably be given to the clause of a contract, according to the principle of good faith the clause should be interpreted to the detriment of the party which drafted the contract."

    Keywords:

    contract; general principle; good faith; intention of parties; interpretation; provision;



  • Judgment 2316


    96th Session, 2004
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 11

    Extract:

    "Res judicata operates to bar a subsequent proceeding if the issue submitted for decision in that proceeding has already been the subject of a final and binding decision as to the rights and liabilities of the parties in that regard. It extends to bar proceedings on an issue that must necessarily have been determined in the earlier proceeding even if that precise issue was not then in dispute. In such a case, the question whether res judicata applies will ordinarily be answered by ascertaining whether one or other of the parties seeks to challenge or controvert some aspect of the actual decision reached in the earlier case."

    Keywords:

    complaint; complaint allowed; decision; definition; enforcement; finality of judgment; general principle; intention of parties; judgment of the tribunal; judicial review; organisation's duties; procedure before the tribunal; res judicata; right; same cause of action; same purpose; settlement out of court; staff member's duties; tribunal;



  • Judgment 2236


    95th Session, 2003
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 13

    Extract:

    "The right to intervene in a complaint filed before the Tribunal is available to persons who wish to claim the benefit of the judgment rendered on that complaint, without having themselves exhausted the remedies available to them. since the intervener has availed himself of the internal remedies and filed a complaint before the Tribunal on which judgment is delivered this day, his application to intervene is, therefore, irreceivable."

    Keywords:

    complaint; consequence; effect; intention of parties; internal appeal; intervention; judgment of the tribunal; receivability of the complaint; request by a party; right; status of complainant;



  • Judgment 2198


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

    Consideration 15

    Extract:

    The complainant worked, from 1993 to 2000, under a series of short-term contracts of varying durations. The complainant submits that there has been unjust enrichment on the part of the organization: it profited materially from appointing him on a short-term basis because he was doing the work of a fixed-term staff member. "The existence and validity of the contracts of employment are a complete bar to this plea. The doctrine of unjust enrichment finds its origins in the law of quasi-contract. As was said in Judgment 2097, under 20, 'the existence of a valid contract between the parties, covering the very matters which are the subject of the claim, excludes any claim of unjust enrichment'."

    Reference(s)

    ILOAT Judgment(s): 2097

    Keywords:

    acceptance; contract; duration of appointment; fixed-term; intention of parties; law of contract; offer; right; short-term; successive contracts; unjust enrichment;

    Consideration 16

    Extract:

    The complainant worked, from 1993 to 2000, under a series of short-term contracts of varying durations. "[A]ppointments extended by the organization to prospective employees and accepted by the latter freely, are policy matters over which the Tribunal will not interfere."

    Keywords:

    acceptance; contract; discretion; duration of appointment; intention of parties; judicial review; offer; short-term; successive contracts;



  • Judgment 2098


    92nd Session, 2002
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 6

    Extract:

    The complainant denies having signed an agreement for the termination of his appointment. He asked for a signed copy of the agreement but the organization cannot provide it. "The facts show beyond all doubt that the complainant accepted the [organization]'s offer. His attitude [is] tantamount to an admission that he did agree to the termination of his appointment. This is further borne out by the fact that he raised no objection when the agreement was implemented. The concurrence and reciprocity between the parties would in itself constitute sufficient evidence that a contract existed even in the absence of proof of a written agreement."

    Keywords:

    acceptance; agreed termination; complainant; contract; enforcement; evidence; intention of parties; lack of evidence; offer; request by a party;



  • Judgment 1924


    88th Session, 2000
    United Nations Industrial Development Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 10

    Extract:

    The complainant accepted a settlement proposal by the organization within the imposed deadline. However, four months went by and he heard nothing more on the subject so he wrote to inquire when the settlement would be effected. One month later he was informed that the organization had learned that certain costs would be higher than it had foreseen, therefore, it preferred that the dispute be decided by the Administrative Tribunal. "Efforts made for the resolution of disputes are to be encouraged and the principle of good faith requires that if an offer is accepted the other party cannot then withdraw from it. The offer [...] should, accordingly, be implemented."

    Keywords:

    acceptance; complaint allowed; complaint allowed in part; good faith; intention of parties; offer; offer withdrawn; organisation's duties; promise; settlement out of court; staff member's interest;



  • Judgment 1916


    88th Session, 2000
    European Southern Observatory
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 8

    Extract:

    The complainant argued that the date the contract enters into force is not negotiable - it must be the date the parties actually sign the contract. "The Tribunal does not agree with the complainant. A contract is concluded when there is a firm and definitive unity of intentions between the contracting parties; it generally takes the form, particularly where, as in this case, it consists of a contract by correspondence, of an offer made by one party followed by the acceptance of the offer by the other party. [...] But in certain instances, the contract may be held to be concluded, by interpretation of the intentions of the parties, even in the absence of agreement on the subsidiary points."

    Keywords:

    acceptance; date; effective date; general principle; intention of parties; law of contract; offer;

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Last updated: 02.07.2020 ^ top