Compensation (585,-666)
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Judgment 4808
137th Session, 2024
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the outcome of the investigation procedure conducted in respect of her harassment grievance and the resulting lack of compensation.
Considerations 9-11, 14 & 17
Extract:
The Tribunal [...] notes that, in the impugned decision, the Director-General did not properly analyse whether or not it was appropriate to provide compensation for the moral injury suffered by the complainant as a victim of the harassment identified by the investigator in her report and recognized by the Organization. In so doing, the Director-General acted in breach of [the] provisions [which] established the complainant’s right to obtain explanations concerning compensation measures that may have been imposed taking into account the harassment identified in the investigation report; however, the Director-General did not attempt such explanations in the impugned decision. [...]
In this regard, the Tribunal notes that the Director-General’s comments in the impugned decision concerning the disciplinary actions or corrective measures that could not be taken due to the retirement of Mr N. and Ms D. did not relate to compensation for the victim of the harassment, namely the complainant.
Furthermore, the Tribunal notes that the Director-General appears to have considered that the payment of benefits received by the complainant under Annex II to the Staff Regulations, further to the recognition of the health problems from which she suffered as a result of the harassment as a service-incurred illness, covered all the injury suffered by the complainant. However, such benefits are not intended to cover the moral injury resulting from this harassment.
The Tribunal further notes that the Director-General’s other comment contained in the impugned decision, that the investigation report would help in some measure to bring the matter to a close, did not, in the circumstances of the case, constitute adequate compensation.
With regard to the Director-General’s comment that, if the complainant required any further support or assistance he encouraged her to make her needs known to HRD, this also was not compensation. [...] The Organization adds that, where a right to
compensation exists, express provision is made in the relevant texts. However, it contends that there is no express provision requiring the Director-General to award financial compensation in the procedure for the administrative resolution of harassment grievances.
The Tribunal cannot accept the defendant’s reading of the relevant provisions, which provide expressly for the right to redress of a staff member subjected to harassment and require the Director-General to consider the applicable remedies in a situation where harassment is recognized. The assertion that no express provision requires the Director-General to grant financial compensation is based on a confusion between the right to redress and the nature of the relief that could be awarded. While it is true that redress does not automatically imply the award of financial compensation and that, in some cases, measures other than the payment of a sum of money may prove adequate, the fact remains that the Organization ought first to have determined the appropriate redress for the complainant in the circumstances of the case, which it did not properly do.
Furthermore, in Judgment 4602, considerations 14 and 16, the Tribunal recalled that, even in a situation where no provision in the internal regulations, rules or policies directly provides for the possibility of a compensation to victims of harassment, its case law clearly recognizes the right to such compensation when properly supported:
“14. Notwithstanding this, the Tribunal considers that the WTO’s assertion, to the effect that no provision in the internal regulations, rules or policies directly provides for the possibility of a compensation to the individuals who filed a harassment complaint, is in tension with and indeed ignores its rather clear case law which recognises the right to such compensation when properly supported. In Judgment 4207, consideration 15, adopted by all seven judges, the Tribunal wrote the following on this issue:
‘It is observed that there are no specific provisions in the IAEA’s Staff Regulations and Staff Rules that articulate a comprehensive procedure to deal with a claim of harassment of the type first discussed in the preceding consideration. In the absence of a lawful comprehensive procedure within the IAEA’s Staff Regulations and Staff Rules to deal with a claim of harassment, the IAEA had to respond to the complainant’s claim of harassment in accordance with the Tribunal’s relevant case law. It is well settled in the case law that an international organization has a duty to provide a safe and adequate working environment for its staff members (see Judgment 2706, consideration 5, citing Judgment 2524). As well, ‘given the serious nature of a claim of harassment, an international organization has an obligation to initiate the investigation itself [...]’ (see Judgment 3347, consideration 14). Moreover, the investigation must be initiated promptly, conducted thoroughly and the facts must be determined objectively and in their overall context. Upon the conclusion of the investigation, the complainant is entitled to a response from the Administration regarding the claim of harassment. Additionally, as the Tribunal held in Judgment 2706, consideration 5, ‘an international organisation is liable for all the injuries caused to a staff member by their supervisor acting in the course of his or her duties, when the victim is subjected to treatment that is an affront to his or her personal and professional dignity’ (see also Judgments 1609, consideration 16, 1875, consideration 32, and 3170, consideration 33). Thus, an international organization must take proper actions to protect a victim of harassment.’ These principles have been recognized by the Tribunal’s case law in a number of situations before that Judgment 4207 (see, for example, Judgments 3995, consideration 9, and 3965, considerations 9 and 10) as well as after that Judgment 4207 (see, for example, Judgments 4547, consideration 3, and 4541, consideration 4).
[...]
16. The Tribunal observes that the WTO’s position is not that victims of harassment are not entitled to compensation. It rather argues that relief must be confined to compensation for the injury caused and that a finding of an unlawful act does not in itself establish a sufficient ground for compensation. The Tribunal in fact understands from the assertions contained in the WTO’s pleadings that the Organization recognizes the complainant’s strong emotions in relation to her request for additional compensation and does not wish, by its contestation, to belittle her feelings in this regard in any way. The WTO emphasizes, however, that any requests for additional compensation sought by the complainant must still meet the applicable legal requirements. On this matter, the Tribunal’s case law indicates that any complainant seeking compensation for material or moral damages must provide clear evidence of the injury suffered, of the alleged unlawful act, and of the causal link between the injury and the unlawful act (see, for instance, Judgments 4158, consideration 4, 3778, consideration 4, 2471, consideration 5, 1942, consideration 6, and 732, consideration 3), and that it is the complainant who bears the burden of proof in this respect (see Judgments 4158, consideration 4, 4157, consideration 7, and 4156, consideration 5).”
The general principle that “an international organisation is liable for all the injuries caused to a staff member by their supervisor [...] when the victim is subjected to treatment that is an affront to his or her personal and professional dignity”, asserted in Judgment 2706, consideration 5, and reiterated in the aforementioned Judgment 4207, applies all the more with regard to the measures to be considered by the executive head in a harassment situation (see also, on this subject, Judgments 4217, consideration 9, and 4171, consideration 11).
Lastly, in Judgment 4299, consideration 5, the Tribunal recalled the following in a case where a staff member alleged to have been harassed and requested compensation:
“It is true that a staff member who has, in the latter situation just discussed, established she or he has been harassed may also be entitled to an award of moral damages by the organization for the harassment (see, for example, Judgment 4158, consideration 3). Whether there is such an entitlement may depend on the terms of the regime in place within the organization to deal with harassment grievances. It is certainly something that can be awarded in proceedings in the Tribunal (see Judgment 4241, considerations 24 and 25). However, what is important is that, even if moral damages might be awarded, that is a subsidiary remedy or relief available in cases of this type when harassment is established. As just discussed, the primary obligation of the organization if harassment is proved is to protect the complainant and prevent further harassment.”
In a situation similar to that of the complainant in the present case, the Tribunal’s case law recognizes that it is the responsibility of the organization that establishes the existence of harassment to redress the injury caused and that, ordinarily, this redress should take the form of monetary compensation for the injury suffered (see, on this subject, Judgment 4158, consideration 3).
[I]t is true that redress for injury suffered by the victim of harassment may, in certain cases, take forms other than monetary compensation [...].
[...]
The Tribunal considers that the complainant has duly established the moral injury she has suffered as a result of the harassment recognized in the investigation report. Since the main factor in the recognition of harassment is the perception that the person concerned may reasonably and objectively have of repeated acts or remarks liable to demean or humiliate them (see, for example, Judgment 4541, consideration 8), the complainant could legitimately, as she maintains, have felt demeaned by the actions of Mr N., and she could have felt that the latter was creating a hostile working environment in her regard, and thus have suffered substantial moral injury (see the aforementioned Judgment 4541, consideration 8).
[...]
[T]he Tribunal has repeatedly recognized the right of a staff member to the payment of monetary compensation for the moral injury suffered as a result of harassment and the resultant affront to her or his dignity (see, for example, Judgments 4663, considerations 17 and 20, 4241, considerations 24 and 25, 4217, consideration 9, and 3995, consideration 9).
Reference(s)
ILOAT Judgment(s): 1609, 1875, 2524, 2706, 3170, 3347, 3995, 4158, 4207, 4217, 4241, 4541, 4547, 4602, 4663
Keywords:
compensation; harassment; moral damages;
Consideration 13
Extract:
In the circumstances, the Tribunal should normally refer the matter to the Director-General in order for him to determine the redress that it would be appropriate to contemplate as compensation for the injury suffered by the complainant as a result of the harassment established. However, in view of the time that has elapsed and the fact that there is sufficient evidence and information in the file to enable the Tribunal to reach a decision on the nature of this redress and to properly assess the amount of compensation for moral injury claimed by the complainant, it would be inappropriate to do so in this case (see, for example, Judgments 4663, consideration 17, 4602, consideration 18, and 4471, consideration 20).
Reference(s)
ILOAT Judgment(s): 4471, 4602, 4663
Keywords:
case sent back to organisation; compensation; harassment; moral injury;
Judgment 4797
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the modifications made to the procedure for examining patent applications and contest the validity of the internal appeal proceedings.
Consideration 10
Extract:
Cases arise in the Tribunal where the defendant organisation has failed to consult a person or a body, which should have been consulted under the relevant rules, and the Tribunal may make orders which require that consultation take place and the Tribunal may also set aside the decision made without consultation (see, for example, Judgment 4230). But setting aside the decision is not an inevitable outcome following a conclusion that consultation should have, but did not, take place.
Reference(s)
ILOAT Judgment(s): 4230
Keywords:
compensation; competence of tribunal; consultation; iloat statute;
Consideration 11
Extract:
In the present case, the failure to consult the GAC occurred over a decade ago. Indeed, as noted earlier, the GAC was abolished in 2014, almost a decade ago. It cannot now be consulted. There is a suggestion in the pleas of both the complainants and the EPO that the Notice is no longer in force. If so, this would be relevant and militate strongly against granting relief based on the failure to consult. But even if it is in force, it is not apparent to the Tribunal that the Notice’s continued implementation would cause any real prejudice or injury to the complainants or the staff of the Office more generally. In these circumstances, it is clearly not advisable to rescind the decision adopting and promulgating the Notice notwithstanding the failure to consult the GAC. However, while Article VIII of the Tribunal’s Statute contemplates the awarding of compensation there should be none in the present case. That is because a staff representative, bringing proceedings in that capacity, is not entitled to an award of moral damages (see Judgment 4575, consideration 9).
Reference(s)
ILOAT Judgment(s): 4575
Keywords:
compensation; competence of tribunal; consultation; iloat statute;
Judgment 4742
137th Session, 2024
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks compensation for the unfair treatment she considers she has suffered because her applications for several positions were rejected and she was not able to take part in training.
Consideration 9
Extract:
[T]he Tribunal cannot accept the complainant’s argument that, in the present case, her complaint is limited to the Organisation’s “decision” to dismiss her claim for compensation for the moral injury it had caused her, pointing to the fact that she is not requesting that each of these individual selection decisions be set aside, which would render her claim receivable. The Tribunal considers this manner of presenting the case contrived, because, as it recalled in Judgment 4655, consideration 15, in a dispute involving a challenge to individual decisions, as here, compensation for injury arising from the alleged unlawfulness of such decisions could only be granted as a consequence of their setting aside, which presupposes by definition that they have been challenged within the applicable time limit. Endorsing the complainant’s argument would have the effect of authorising the Organisation’s staff members in practice to evade the effects of the rules on time limits for filing appeals by allowing them to seek compensation at any time for injury caused to them by an individual decision, even though they did not challenge that decision in due time. Such a situation would scarcely be permissible having regard to the requirement of stability of legal relations which, as the Tribunal regularly points out in its case law, is the very justification for time bars (see, for example, Judgment 3406, consideration 12, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 3406, 4655
Keywords:
compensation; late appeal; receivability of the complaint;
Judgment 4709
136th Session, 2023
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the refusal to recognise her illness as attributable to official duty.
Consideration 12
Extract:
[T]he Tribunal observes that, under the compensation scheme applicable in the event of illness attributable to official duty established by Article 8.3 of the Staff Regulations, which is the sole legal basis for the complainant’s compensation claim, the ILO incurs strict liability when such an illness is recognised but is not held negligent. While the award of compensation under this scheme does not rule out the possibility that the Organization may also be accused of negligence, the question of whether it is liable on that other basis is in principle a separate dispute (see, for example, Judgments 4222, consideration 15, 3946, consideration 17, and 3111, consideration 8). Consequently, the complainant is not in any event entitled, in the present case, to submit for the first time before the Tribunal claims based on the existence of such negligence.
Reference(s)
ILOAT Judgment(s): 3111, 3946, 4222
Keywords:
compensation; illness; service-incurred;
Judgment 4663
136th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the refusal to acknowledge the harassment that she alleges she suffered and to provide her with the full inquiry report drawn up following her internal complaint against a colleague.
Considerations 17-18
Extract:
[T]he complainant does not request in her submissions that her complaint of harassment be remitted to the Organization for a thorough inquiry. She confines herself to claiming redress for moral injury and seeking an award of damages. In view of this, the Tribunal considers it inappropriate to refer the case back to the Organization. Rather, the appropriate course in this case is to award the complainant adequate compensation for the moral injury caused by the decisions that the Tribunal will set aside. The Tribunal considers that there is sufficient evidence and information in the file to enable it to reach a decision on the extent of this injury.
As can be seen from the foregoing, the complainant was deprived of her right to have a rigorous and thorough inquiry conducted into her complaint of harassment, which would, in all likelihood, have established that she had submitted a credible complaint of harassment in good faith. In addition, the complainant was deprived of her right to know whether the harassment against her had been acknowledged and of her right to receive the report of the preliminary inquiry into the complaint in good time.
Keywords:
case sent back to organisation; compensation; harassment; moral injury;
Judgment 4655
136th Session, 2023
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the decisions rejecting their requests for redefinition of their employment relationships.
Consideration 15
Extract:
[T]he complainants maintain [...] that the requests for redefinition of their employment relationships cannot be considered as time-barred because they are “actions involving compensation”, their sole purpose being “to obtain redress for the injury caused by the misuse of precarious contracts”, and that actions of this type are not, as such, subject to a time limit specified in WIPO’s rules. However, the Tribunal considers this manner of presenting the cases contrived, because in a dispute involving a challenge to individual decisions, as here, compensation for injury arising from the alleged unlawfulness of those decisions could only be granted as a consequence of their being set aside, which presupposes by definition that they have been challenged within the applicable time limit. The complainants’ reference to the case law on which they consider they can base this argument, which relates to different situations, is irrelevant in the present case. Furthermore, endorsing this argument – which would, once again, involve departing from the approach taken in [...] Judgments 4159 and 4160 – would have the effect of authorising the Organization’s staff members in practice to evade the effects of the rules on time limits for filing appeals by allowing them to seek compensation at any time for injury caused to them by an individual decision, even though they did not challenge that decision in time. Such a situation would scarcely be permissible having regard to the requirement of stability of legal relations which, as the Tribunal regularly points out in its case law, is the very justification for time bars (see, for example, Judgment 3406, consideration 12, and the other judgments cited therein).
Reference(s)
ILOAT Judgment(s): 3406, 4159, 4160
Keywords:
compensation; conversion of contract; injury; late appeal; redefinition of contract; time bar;
Judgment 4614
135th Session, 2023
Energy Charter Conference
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to reject her harassment claim.
Consideration 17
Extract:
[T]he impugned decision should be set aside. Given the effluxion of time and the fact that the complainant no longer works for the organisation and would no longer need protection from any harassment (see, for example, Judgment 4286, consideration 19), it is not appropriate to remit the matter to the organisation to reconsider the complainant’s harassment grievance. In any event, she does not seek such an order. As the moral injury is evident from the circumstances of the case, the complainant is entitled to moral damages (see Judgment 4541, consideration 11).
Reference(s)
ILOAT Judgment(s): 4286, 4541
Keywords:
compensation; harassment; moral damages;
Judgment 4602
135th Session, 2023
World Trade Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to award her material and moral damages as a victim of harassment and abuse of authority by her direct supervisor.
Consideration 14
Extract:
[T]he WTO’s assertion, to the effect that no provision in the internal regulations, rules or policies directly provides for the possibility of a compensation to the individuals who filed a harassment complaint, is in tension with and indeed ignores its rather clear case law which recognises the right to such compensation when properly supported. In Judgment 4207, at consideration 15, adopted by all seven judges, the Tribunal wrote the following on this issue […].
These principles have been recognized by the Tribunal’s case law in a number of situations before that Judgment 4207 (see, for example, Judgments 3995, consideration 9, and 3965, considerations 9 and 10) as well as after that Judgment 4207 (see, for example, Judgments 4547, consideration 3, and 4541, consideration 4).
Reference(s)
ILOAT Judgment(s): 3965, 3995, 4207, 4541, 4547
Keywords:
compensation; harassment; staff regulations and rules;
Judgment 4482
133rd Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the “social democracy” reform introduced by decision CA/D 2/14.
Consideration 12
Extract:
This case presents a situation where a remedy, which may intrude into the exercise of power by the Administrative Council, is appropriate to protect a fundamental right of a member of staff and, indeed, all members of staff which was a term of their appointment as officials of the EPO. The adoption of those parts of the new rules concerning elections by decision CA/D 2/14 entailed non-observance of that term of appointment. There can be no doubt that freedom of association is a well-recognised and acknowledged universal right which all workers should enjoy. It is recognised as a right by the Tribunal (see Judgment 4194). It is a right recognised in the 1998 ILO Declaration on Fundamental Principles and Rights at Work, Article 2(a), as an obligation for all ILO Member States arising from the very fact of their membership in the ILO. Freedom of association is a right recognised by the 1966 International Covenant on Civil and Political Rights, Article 22, and also by the 1966 International Covenant on Economic, Social and Cultural Rights, Article 8.
Reference(s)
ILOAT Judgment(s): 4194
Keywords:
compensation; freedom of association; ilo instruments; international instrument; terms of appointment;
Consideration 15
Extract:
Having regard to the fact that those amendments violated the complainant’s right to freedom of association as already discussed and created this tension, it is appropriate to quash those elements of decision CA/D 2/14 which had this effect, namely the introduction by Article 6 of decision CA/D 2/14 of a new clause (5) of Article 35 of the Service Regulations in substitution for clause 6 of Article 35 of the pre-existing Service Regulations. The central order the Tribunal will make is intended to operate prospectively. That is to say, is intended to operate in relation to future elections but not affect the tenure of staff representatives already elected under the election regime put in place by decision CA/D 2/14. Retrospective operation would create unacceptable legal uncertainty about the actions, including decisions, of staff representatives and committees in the lengthy period since decision CA/D 2/14 was adopted. It is also intended to apply the pre-existing provisions, mutatis mutandis, to the election of staff representatives for the Central Staff Committee and Local Staff Committees as established by decision CA/D 2/14. In this respect, the order revives the pre-existing rules (see Judgment 365, consideration 4). Necessarily the applicable Implementing Rules, Circular No. 355, will have no legal effect.
Reference(s)
ILOAT Judgment(s): 365
Keywords:
compensation; freedom of association; order;
Judgment 4395
131st Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the amount of compensation awarded to him for the cessation of his shift work activities following a reorganisation.
Judgment keywords
Keywords:
compensation; complaint dismissed; working hours;
Consideration 8
Extract:
The Tribunal finds that the compensation which the complainant received is consistent with the requirements which the Tribunal provided in Judgment 3373, consideration 11, for calculating ex aequo et bono the amount of his entitlement for the cessation of his shift work and that the EPO thereby adequately compensated him therefor. It had also thereby met the duty of care owed to the complainant for the adverse financial impact caused by its decision to end shift work.
Reference(s)
ILOAT Judgment(s): 3373
Keywords:
compensation; reorganisation;
Judgment 4222
129th Session, 2020
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the refusal of UNESCO to award full compensation for the injury suffered as a result of an accident recognized as being service-incurred.
Considerations 15-17
Extract:
According to article 4 of the Staff Compensation Plan:
“The compensation payable under these Rules shall be the sole compensation to which any person shall be entitled as against the Organization in respect of any claim falling within the provisions thereof”.
Contrary to the defendant organization’s submissions, these provisions do not preclude a staff member from claiming compensation for the consequences of negligence on the part of the Organization. Such a claim cannot be regarded as being based on the provisions of this plan (see, for similar cases, Judgments 3689, consideration 5, and 3946, consideration 17).
[...]
According to the Tribunal’s case law, an organization may incur liability in negligence where it fails to take reasonable steps to prevent a foreseeable risk of injury (see Judgments 2804, consideration 25, 3215, consideration 12, and 3733, consideration 12). In the instant case, it is apparent from the file that the floor of the podium set up for the seminar was defective and should have been repaired or, at least, signposted, as evidenced by the occurrence of the accident.[...]
According to the Tribunal’s case law, an international organization has a duty to provide a safe and adequate environment for its staff, and they in turn have the right to insist on appropriate measures to protect their health and safety (see Judgments 3025, consideration 2, 2403, consideration 16, and 3689, consideration 5).
In the instant case, the Organization, which had ordered the construction of the podium in which the hole was found, should have ensured that this work was properly carried out. It must therefore be recognized that the Organization is at fault.
Pursuant to the principle that full compensation is due in respect of injuries caused by negligence on the part of the Administration, the complainant is entitled to compensation for injuries not already compensated under the Staff Compensation Plan.
Reference(s)
ILOAT Judgment(s): 2403, 2804, 3025, 3215, 3689, 3689, 3733, 3946
Keywords:
allowance; compensation; construction work; negligence; professional accident;
Judgment 4217
129th Session, 2020
International Fund for Agricultural Development
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to provide her with the record of the investigation that ensued after she filed a harassment complaint against her supervisor, and the fact that she received no compensation for the moral harassment that she claims to have suffered.
Consideration 9
Extract:
According to the Tribunal’s case law, by virtue of the principle that an international organisation must provide its staff members with a safe and healthy working environment, it is liable for all injuries caused to a staff member by a supervisor when the victim is subjected to treatment that is an affront to her or his dignity (see, for example, Judgments 1609, under 16, 1875, under 32, 2706, under 5, or 3170, under 33).
Reference(s)
ILOAT Judgment(s): 1609, 1875, 2706, 3170
Keywords:
compensation; harassment; moral injury; respect for dignity; working conditions;
Judgment 4216
129th Session, 2020
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the lawfulness of the decision to cancel a competition procedure in which he took part.
Consideration 11
Extract:
At this stage in its findings, the Tribunal would normally remit the case to the Organisation for the Director General to take a new decision concerning the disputed competition procedure, this time basing his assessment on a consideration of the exact substance of the findings of the selection board.
However, the response to the Tribunal’s request for further information shows that the complainant retired on 1 January 2019. Since the issue of his possible appointment to the post in question has become moot, it is not advisable to remit the case to Eurocontrol, but the Tribunal will award the complainant compensation for the various injuries caused to him by the contested decisions, as foreseen by Article VIII of the Statute of the Tribunal in cases of this type.
Keywords:
compensation; competition; competition cancelled;
Judgment 4158
128th Session, 2019
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant submits that WIPO has not fully compensated her for the injury that she suffered as a result of being subjected to harassment.
Consideration 7
Extract:
The amount of compensation must be the subject of a specific examination, which takes into account all relevant factors, such as the seriousness, nature and duration of the injury suffered and also whether or not the organization withdrew the irregular decision and rectified the irregularity.
Keywords:
burden of proof; compensation; moral injury;
Judgment 4157
128th Session, 2019
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the amount of compensation awarded for the moral injury she suffered because her evaluation for 2013 was irregular and contests the partial modification thereof.
Consideration 9
Extract:
The amount of compensation must be the subject of a specific examination, which takes into account all relevant factors, such as the seriousness, nature and duration of the damage suffered and also whether or not the organization withdrew the irregular decision and rectified the irregularity.
In order to justify increasing the award of compensation, the complainant cites numerous irregularities committed by the reviewing officer, the violation of the adversarial principle owing to the absence of discussion prior to her evaluation, the formal flaw in the evaluation, which was not written in electronic form but handwritten, the lateness of the 2012 evaluation, the absence of dialogue, the clear desire to negate and denigrate her work, misuse of authority, and partiality against her.
The Appeal Board concluded that the shortcomings in the 2013 evaluation for the complainant were “obvious and numerous”. The Director General shared this view and removed the reviewing officer’s comments and rating. Consequently, the complainant’s arguments concerning the irregularities committed by the reviewing officer, as set out above, have become moot and there is no need to examine them. Furthermore, the cited irregularities are not, in the present case, such as to aggravate the moral injury suffered by the complainant.
Keywords:
claim moot; compensation;
Judgment 4156
128th Session, 2019
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the amount of compensation awarded for the moral injury she suffered because her evaluation for 2012 was irregular.
Consideration 6
Extract:
The amount of compensation must be the subject of a specific examination, which takes into account all relevant factors, such as the seriousness, nature and duration of the damage suffered and also whether or not the organization withdrew the irregular decision and rectified the irregularity. In this case, the evaluation – which, incidentally, was belated – contained unjustified and inappropriately worded criticisms. The complainant states that her dignity was hurt by the irregularities committed and that she was shocked at the aggressive and hostile behaviour of the reviewing officer, who expressed her views using excessive language. She emphasizes that, even though the disputed evaluation was withdrawn, this was only done after more than 16 months, during which time she suffered “severe stress and anxiety”.
Keywords:
burden of proof; compensation; moral injury;
Judgment 4138
128th Session, 2019
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the decision to apply to their salaries the post adjustment multiplier determined by the ICSC on the basis of its 2016 cost-of-living survey for Geneva, with the result that their salaries were reduced.
Consideration 50
Extract:
It is necessary to consider what is the appropriate relief. In a number of cases in which the complainants have established that a decision to adjust salaries was unlawful, the order of the Tribunal has been to set aside the impugned decision and to remit the matter to the organization to consider the matter afresh and make a new decision (see, for example, Judgments 1821, consideration 11, and 3324, considerations 22 and 23). However, in the present case, the unlawfulness of the administration’s decision flowed from the unlawfulness of the decision of the ICSC. The decisions to implement ICSC/CIRC/PAC/518 and ICSC/CIRC/PAC/522 are unlawful. WIPO cannot, by a new decision, render the ICSC’s decisions lawful. Accordingly, WIPO should be ordered to reinstate the applicable PAM in place immediately before the decision to reduce salaries was taken and pay the complainants the salary lost between then and the time the PAM is reinstated, together with interest.
Reference(s)
ILOAT Judgment(s): 1821, 3324
Keywords:
compensation; icsc decision; material damages; post adjustment;
Judgment 4137
128th Session, 2019
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the decision to apply to their salaries the post adjustment multiplier determined by the ICSC on the basis of its 2016 cost-of-living survey for Geneva, with the result that their salaries were reduced.
Consideration 42
Extract:
It is necessary to consider what is the appropriate relief. In a number of cases in which the complainants have established that a decision to adjust salaries was unlawful, the order of the Tribunal has been to set aside the impugned decision and to remit the matter to the organization to consider the matter afresh and make a new decision (see, for example, Judgments 1821, consideration 11, and 3324, considerations 22 and 23). However, in the present case, the unlawfulness of the administration’s decision flowed from the unlawfulness of the decision of the ICSC. The decisions to implement ICSC/CIRC/PAC/518 and ICSC/CIRC/PAC/522 are unlawful. The ITU cannot, by a new decision, render the ICSC’s decisions lawful. Accordingly, the ITU should be ordered to reinstate the applicable PAM in place immediately before the decision to reduce salaries was taken and pay the complainants and interveners the salary lost between then and the time the PAM is reinstated, together with interest.
Reference(s)
ILOAT Judgment(s): 1821, 3324
Keywords:
compensation; icsc decision; material damages; post adjustment;
Judgment 4136
128th Session, 2019
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the decision to apply to their salaries the post adjustment multiplier determined by the ICSC on the basis of its 2016 cost-of-living survey for Geneva, with the result that their salaries were reduced.
Consideration 42
Extract:
It is necessary to consider what is the appropriate relief. In a number of cases in which the complainants have established that a decision to adjust salaries was unlawful, the order of the Tribunal has been to set aside the impugned decision and to remit the matter to the organization to consider the matter afresh and make a new decision (see, for example, Judgments 1821, consideration 11, and 3324, consideration 22). However, in the present case, the unlawfulness of the administration’s decision flowed from the unlawfulness of the decision of the ICSC. The decisions to implement ICSC/CIRC/PAC/518 and ICSC/CIRC/PAC/522 are unlawful. IOM cannot, by a new decision, render the ICSC’s decisions lawful. Accordingly, IOM should be ordered to reinstate the applicable PAM in place immediately before the decision to reduce salaries was taken and pay the complainants and interveners the salary lost between then and the time the PAM is reinstated, together with interest.
Reference(s)
ILOAT Judgment(s): 1821, 3324
Keywords:
compensation; icsc decision; material damages; post adjustment;
Judgment 4135
128th Session, 2019
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the decision to apply to their salaries the post adjustment multiplier determined by the ICSC on the basis of its 2016 cost-of-living survey for Geneva, with the result that their salaries were reduced.
Consideration 49
Extract:
It is necessary to consider what is the appropriate relief. In a number of cases in which the complainants have established that a decision to adjust salaries was unlawful, the order of the Tribunal has been to set aside the impugned decision and to remit the matter to the organization to consider the matter afresh and make a new decision (see, for example, Judgments 1821, consideration 11, and 3324, considerations 22 and 23). However, in the present case, the unlawfulness of the administration’s decision flowed from the unlawfulness of the decision of the ICSC. The decisions to implement ICSC/CIRC/PAC/518 and ICSC/CIRC/PAC/522 are unlawful. WHO cannot, by a new decision, render the ICSC’s decisions lawful. Accordingly, WHO should be ordered to reinstate the applicable PAM in place immediately before the decision to reduce salaries was taken and pay the complainants and interveners the salary lost between then and the time the PAM is reinstated, together with interest.
Reference(s)
ILOAT Judgment(s): 1821, 3324
Keywords:
compensation; icsc decision; material damages; post adjustment;
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