Duty of care (645,-666)
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Keywords: Duty of care
Total judgments found: 137
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Judgment 4782
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants filed an application review of Judgment 4484.
Considerations 7-8
Extract:
[T]he Tribunal recalled its statements in Judgment 2972 that payment should be made “to each complainant for so long as he works shifts outside normal working hours” and that it was clear from its terms that Judgment 2972 was not based on acquired rights or the working of night shifts, but on the Organisation’s “duty of care to ensure that the new arrangements did not cause financial hardship to [the complainants]”.
The foregoing analysis confirms that the rationale for the Tribunal’s determination, in consideration 8 of Judgment 4484, that its decision that the complainants’ claims were unfounded did not depend upon whether or not the complainants continued to work or were still engaged in performing shift work. This therefore had no substantial bearing on the decision to dismiss their complaints. Rather, as the Tribunal explained, it was satisfied that the Appeals Committee had correctly considered that the deductions the Office made from the complainants’ compensatory allowances in respect of their career progression were permissible and lawful because the adverse financial effects that the reorganisation had had on their incomes in 2005 had been mitigated after some ten years during which the EPO had slightly reduced the compensatory allowance, while maintaining the complainants’ income at a stable level. The EPO had thereby over that period of time discharged the duty of care it owed to the complainants.
Reference(s)
ILOAT Judgment(s): 2972, 4484
Keywords:
duty of care;
Judgment 4777
137th Session, 2024
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the calculation of his remuneration and the determination of his step following his promotion from grade G.6 to grade P.3.
Consideration 6
Extract:
[A]ccording to well-established case law of the Tribunal, the general principle of good faith and the duty of care demand that international organisations treat their staff with due consideration in order to avoid causing them undue injury and that an employer must consequently inform officials in advance of any action that might imperil their rights or harm their rightful interests (see Judgment 4072, consideration 8, and the case law cited therein). However, the Tribunal considers that this obligation to act in good faith and this duty of care do not – despite what the complainant submits to the contrary, without identifying anything in the Tribunal’s case law to substantiate his argument – extend to a requirement for the organisation to take the initiative to calculate the loss or gain in salary which might result from a promotion from a grade G post to a grade P post for any staff member interested in applying for such a promotion.
Reference(s)
ILOAT Judgment(s): 4072
Keywords:
duty of care; duty to inform; good faith; salary;
Judgment 4748
137th Session, 2024
International Olive Council
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his appointment at the end of his probationary period.
Consideration 7
Extract:
The [organization] violated its duty of care by failing to maintain a properly functioning appeal system, in breach of the applicable rules established by Articles 50 and 64 of the Staff Regulations [...]. Denying the complainant the opportunity to exercise his right to an effective internal appeal denied the fundamental safeguards provided by that right. Neither administrative inefficiency nor a lack of resources can excuse this failure. This is particularly important in a case involving the termination of employment, such as the present. If the appeal reveals that the termination decision was flawed, then, if it has been dealt with in a timely way, steps can be taken to reverse the effects of the termination, including reinstating the employee. As time passes, that outcome becomes increasingly difficult, for practical purposes, to achieve.
Keywords:
duty of care; internal appeals body; organisation's duties; right of appeal;
Judgment 4727
136th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant asserts that the EPO failed to assist him in his attempts to obtain corrected identity cards for his children.
Judgment keywords
Keywords:
complaint allowed; duty of care;
Considerations 6 & 10
Extract:
As regards the particular legal context of the present dispute, it must be noted that the issuing of identity documents or visas to persons enjoying the privileges and immunities conferred by the seat agreement of an international organisation is the prerogative of the host State. The only duty on the organisation in question in that regard is to provide its officials with the necessary assistance to ensure that the rights inherent in their status as members of staff of that organisation are complied with by that State. Furthermore, the organisation is free to choose how it approaches the authorities in order to discharge that duty. As a result, the organisation can only be liable for delays in a suitable visa or identity document being issued if it has acted in bad faith, behaved inappropriately in its relations with the host State or been negligent in monitoring the progress of the case (see, in particular, on these various points, Judgment 3510, delivered in connection with a previous complaint lodged by the complainant concerning the initial refusal of the Dutch authorities to grant an entry visa to his daughter S., considerations 9, 12 to 14, 17 and 18, and the case law cited therein).
[...]
Admittedly, as has already been stated, issuing identity cards is a matter for the authorities of the host State and it is clearly beyond the competence of the Tribunal to examine the conditions in which the authorities assume that responsibility.
Reference(s)
ILOAT Judgment(s): 3510
Keywords:
duty of care; host state; organisation's duties;
Judgment 4697
136th Session, 2023
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the Director General’s decision to impose on him the disciplinary sanction of downgrading.
Consideration 26
Extract:
As regards the complainant’s claim for the award of 50,000 euros in moral damages, it is well established in the Tribunal’s case law, firstly, that international organisations are bound to refrain from any type of conduct that may harm the dignity or reputation of their staff members and that the general principle of good faith and the concomitant duty of care require them to treat their staff with due consideration in order to avoid causing them undue injury (see, for example, Judgment 4559, consideration 10). Secondly, settled case law also holds that internal appeals must be conducted with due diligence and in a manner consistent with the duty of care an international organisation owes to its staff members (see Judgment 4178, consideration 15).
Reference(s)
ILOAT Judgment(s): 4178, 4559
Keywords:
duty of care; good faith; internal appeal; moral injury; organisation's duties;
Judgment 4684
136th Session, 2023
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the classification exercise for her post and seeks compensation in this regard.
Consideration 10
Extract:
The Tribunal considers that these successive delays in updating the complainant’s job description are indeed unreasonable and that the Organization thereby breached its duty of care and its duty to exercise diligence with regard to these other failings. The effect was to unduly prolong the updating exercise over a period of almost eight years and inevitably caused the complainant moral injury, which may be fairly redressed by awarding her compensation in the amount of 3,000 euros.
Keywords:
duty of care; time limit;
Judgment 4609
135th Session, 2023
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the new decision taken by UNESCO pursuant to Judgment 3936 in the context of her appeal against the decision to transfer her to Paris.
Consideration 5
Extract:
The Tribunal notes [...] that, in this particular case, UNESCO was obliged to end the complainant’s assignment as Head of the Kinshasa Office following the birth of her child. Non-family duty stations, which are determined for all organisations in the United Nations system by the International Civil Service Commission on the basis of recommendations from the United Nations’ Department of Safety and Security, and a list of which appears, in the case of UNESCO, in Annex 4 C to the Human Resources Manual, are places considered unsuitable for the assignment of staff members who are accompanied by their family due to the security situation in the States where they are located. Since Kinshasa was, at the material time, classed as a duty station in this category, the Tribunal considers that the Organization was therefore obliged to transfer the complainant to a post compatible with her new family status. Had it not done so, UNESCO would not only have failed to follow its own rules but also and above all would have put the complainant and her child in danger, which would have been a serious breach of the duty that all international organisations have pursuant to the Tribunal’s case law to adopt appropriate measures to ensure the safety of their staff members and, more generally, a breach of the duty of care towards them (see, inter alia, Judgments 4239, consideration 21, 3689, consideration 5, and 3025, consideration 2).
Reference(s)
ILOAT Judgment(s): 3025, 3689, 4239
Keywords:
duty of care; duty station; non-family duty station; organisation's duties;
Judgment 4600
135th Session, 2023
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reject her claim that her illness be recognized as service-incurred.
Consideration 6
Extract:
The Tribunal has consistently stated that international organizations have a duty to adopt appropriate measures to protect the health and ensure the safety of their staff members and that an organization which disregards this duty is liable to pay damages to the staff member concerned (see, for example, Judgment 3689, under 5). In the circumstances of this case, the organization breached its duty of care to the complainant when it rejected her claim for compensation for her service-incurred illness in the face of the overwhelming evidence, including four favourable medical reports, and its failure to ensure a healthy work environment to protect her health.
Reference(s)
ILOAT Judgment(s): 3689
Keywords:
duty of care; health; service-incurred;
Judgment 4559
134th Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the refusal to grant him retroactively two days of annual leave as compensation for two days worked during that leave.
Consideration 10
Extract:
[I]t is well established in the Tribunal’s case law that international organisations are bound to refrain from any type of conduct that may harm the dignity or reputation of their staff members (see, for example, Judgment 3613, consideration 46) and that the general principle of good faith and the concomitant duty of care require them to treat their staff with due consideration in order to avoid causing them undue injury (see, for example, Judgment 3861, consideration 9).
Reference(s)
ILOAT Judgment(s): 3613, 3861
Keywords:
duty of care; good faith; organisation's duties; professional reputation; respect for dignity;
Judgment 4556
134th Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant asks to be provided with a copy of his old medical file.
Consideration 10
Extract:
[I]n its opinion the IAC noted that, while there were no explicit legal provisions that could justify the complainant’s request for the Organisation to provide or procure such a file in the circumstances of the case, the Tribunal’s case law recognises that a staff member has the right to consult and be sent medical reports concerning her or him. The IAC rightly concluded that the Office had failed to ensure that files were properly retained, even after the external doctors with whom it had previously worked had ceased their activity. This obligation stems from the general duty of care and the Office’s duty adequately to safeguard the personal data of its staff.
Keywords:
duty of care; medical records; personal data;
Judgment 4554
134th Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision deriving from the Administrative Council’s decision CA/D 2/15 to require the recipients of the new retirement pension for health reasons to cease performing gainful activities or employment or to refrain from performing such activities or employment.
Consideration 7
Extract:
[T]he Tribunal [...] notes that, although the file shows that [...] the EPO sent the complainant tables showing the method used to calculate his pension, it cannot be considered, as the Organisation submits, that the complainant’s request for information has thereby become moot, particularly since the tables were not accompanied by any explanations in words and, moreover, they were expressly presented as being only provisional. If the complainant were to continue to wish for additional information concerning the method used to calculate his pension, the Organisation should, under its duty to provide information and its duty of care, endeavour to meet his expectations, provided, at least, that they are formulated with sufficient clarity (see, on this point, Judgment 3963, consideration 2).
Reference(s)
ILOAT Judgment(s): 3963
Keywords:
disclosure of evidence; duty of care; duty to inform; pension;
Judgment 4517
134th Session, 2022
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks restoration of her entitlements to healthcare and health insurance.
Consideration 9
Extract:
[T]he Tribunal considers it useful to point out, in the light of the highly specific circumstances of the case and by way of information only, that, under its case law, changes to rules or circumstances that cause a sudden reduction in a staff member or former staff member’s financial resources may warrant at least partial compensation for the resulting injury, even where no criticism can be made of their legality as such, particularly in terms of respect for acquired rights. Under its duty of care, the organisation concerned is, as a rule, bound to ensure that the staff member concerned is not thereby forced suddenly to alter her or his standard of living or personal choices based on the legitimate hope that she or he will continue to receive the same resources as previously (see, in particular, Judgment 4465, considerations 12 to 18, or Judgment 3373, considerations 5 to 11).
Reference(s)
ILOAT Judgment(s): 3373, 4465
Keywords:
duty of care;
Judgment keywords
Keywords:
duty of care; former official; medical insurance;
Consideration 8
Extract:
[I]n the very specific circumstances of the case, the Tribunal considers that, in view of the complainant’s advanced age and frail health, which plainly make it difficult in practice for her to access information concerning her rights, and the fact that, in this context, she could legitimately be unaware of the – still relatively recent – revision of the Staff Regulations extending the scope of the internal appeal procedure to former staff members, it was incumbent on ITU to ensure that the complainant was duly informed of the remedies and time limits for challenging the impugned decision, at least as from receipt of the abovementioned letter of 27 June 2020. Although the Tribunal’s case law does not ordinarily place such an obligation on organisations, ITU’s duty of care towards this former staff member required it to provide her with the necessary information on this point (for a comparable case involving a failure to state the means of redress and applicable time limits in the notification of a decision sent to a former staff member with a serious disability, see Judgment 3012, consideration 6). That requirement was not met by ITU, since – somewhat shockingly from a human perspective – the Organisation simply failed to communicate with the complainant from the beginning of the present case and, in particular, did not reply to either of the abovementioned letters sent to it on her behalf.
Reference(s)
ILOAT Judgment(s): 3012
Keywords:
duty of care; former official; internal appeal;
Judgment 4503
134th Session, 2022
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to extend her fixed-term appointment upon its expiry.
Consideration 10
Extract:
[T]he Organization complied with its duty of care. The complainant was given five months’ notice of the non-renewal of her contract; the expiry of the contract occurred at the contractually agreed time, and the complainant received reasons for the non-renewal, orally and in writing (see Judgment 4321, consideration 8).
Reference(s)
ILOAT Judgment(s): 4321
Keywords:
duty of care; fixed-term; motivation; motivation of final decision; non-renewal of contract; notice;
Judgment 4499
134th Session, 2022
Customs Co-operation Council
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate her appointment following the abolition of her post.
Consideration 6
Extract:
[T]he Tribunal considers that, in order to ensure that the complainant had the opportunity to exercise effectively her right of appeal against that decision, which was clearly of paramount importance to her because it involved the termination of her appointment, it was the WCO’s responsibility to inform her explicitly about the means of redress available to challenge it and the time limits for so doing. Although the Tribunal’s case law does not ordinarily place such an obligation on organisations, the WCO’s duty of care towards the complainant required, in this case, that it provide her with the necessary information on this point (for a comparable case involving a failure to state the means of redress and applicable time limits in the notification of a decision sent to a former staff member with a serious disability, see Judgment 3012, consideration 6, or, for a case involving failure to provide such information to an elderly former staff member in fragile health affected by a decision significantly reducing the coverage of her costs of residence in a nursing home, Judgment 4517, consideration 8).
Reference(s)
ILOAT Judgment(s): 3012, 4517
Keywords:
duty of care; internal appeal;
Judgment 4492
133rd Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks compensation for the alleged financial consequences of the decision taken in March 2003 to grant her an invalidity pension with retroactive effect from 1 July 2000.
Consideration 9
Extract:
The Tribunal recalls that the principle of good faith and the concomitant duty of care demand that international organisations treat their staff with due consideration in order to avoid causing them undue injury; an employer must consequently inform employees in advance of any action that may imperil their rights or harm their rightful interests. The case law further states that the duty of care is greater in a rather opaque or particularly complex legal situation, as is often the case when it is necessary to determine staff rights in technical fields, such as the determination of pension rights (see, for example, Judgments 3861, under 9, and 2768, under 4).
Reference(s)
ILOAT Judgment(s): 2768, 3861
Keywords:
duty of care;
Judgment 4465
133rd Session, 2022
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to cease paying boarding assistance for his son following amendments to the education grant scheme.
Judgment keywords
Keywords:
acquired right; complaint allowed; duty of care; education expenses; icsc decision;
Considerations 17-18
Extract:
In the present case, the complainant embarked upon the tertiary education of his son at a university in the United States of America in 2014. This was the complainant’s home country and involved travel and boarding. By the time the amendments were made to the education grant scheme, the son had completed three of the four years of his course at that university. The complainant had no real option to alter these arrangements in order to reduce the significant financial burden arising from the amendment to the scheme.
The IAEA breached its duty of care to the complainant, as that expression is currently used in the Tribunal’s case law, and the complainant is entitled to damages.
Keywords:
duty of care; education expenses;
Judgment 4459
133rd Session, 2022
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to defer her transfer, under IOM’s policy on rotation, to Sudan until she was able to find adequate medical and schooling facilities for her disabled daughter.
Judgment keywords
Keywords:
complaint allowed; duty of care; transfer;
Consideration 10
Extract:
[T]he Tribunal’s view is that the complainant reasonably requested that her move to Sudan be delayed and that, pursuant to paragraph 5 to Annex 8 to the Staff Rules relating to rotation and the duty of care owed to the complainant, the Director General should have continued to temporarily waive her transfer under the rotation policy out of consideration for her daughter’s special needs and related family circumstances until she was able to secure suitable facilities there for her educational needs. This would have been in accordance with the duty of care which IOM owed to the complainant, which was accordingly breached.
Keywords:
duty of care; transfer;
Judgment 4427
132nd Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to maintain his transfer to a patent examiner post.
Consideration 11
Extract:
The complainant’s contention that the decision to transfer him to the examiner’s position violated the EPO’s duty of care and his dignity is well founded given the indignity and humiliation he suffered by virtue of his transfer from the administrative post that he held for some 16 years to what was, in effect, an entry level examiner’s position. The Tribunal has consistently stated, in Judgment 4240, consideration 16, for example, that an organization must carefully take into account the interests and dignity of staff members when effecting a transfer to which the staff member concerned is opposed. It should have been obvious to the EPO that the complainant’s responsibilities in the new post were significantly different from those responsibilities which were attached to his previous post and were not objectively comparable with his previous responsibilities. Moreover, there is no evidence to show that the complainant’s legitimate objections to the proposed transfer were properly addressed by the Administration before he was transferred.
Reference(s)
ILOAT Judgment(s): 4240
Keywords:
duty of care; respect for dignity; transfer;
Consideration 12
Extract:
[T]he complainant’s contention that the transfer decision was tainted by misuse of authority is unfounded. In consideration 10 of Judgment 4146, for example, the Tribunal recalled that the principle of good faith and the concomitant duty of care require international organisations to treat their staff with due consideration in order to avoid causing them undue injury. It also observed that in order for there to be misuse of authority, it must be established that the decision rested on considerations extraneous to the organisation’s interests and that the staff member alleging abuse of authority bears the burden of establishing the improper purpose for which the authority was exercised. Misuse of authority cannot be presumed. The complainant has not provided evidence, against conjecture, that shows that his transfer was based on improper purpose.
Reference(s)
ILOAT Judgment(s): 4146
Keywords:
abuse of power; burden of proof; duty of care; evidence; misuse of authority; organisation's duties;
Judgment 4405
132nd Session, 2021
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to abolish her post and terminate her fixed-term appointment.
Consideration 11
Extract:
Plainly, the unlawfulness of the abolition of the complainant’s position and the subsequent termination of her appointment caused her moral injury. That injury was, in this case, compounded by the complainant’s distressing situation following her separation from service, which took place while she was receiving extensive medical treatment of which the ICC had been informed. It was also compounded by the fact that the Court, which has itself acknowledged that it failed in its duty of care in this respect, did not make every effort to “explore with the complainant other employment options before prior to [her] separation”.
Keywords:
duty of care; moral injury;
Judgment 4401
132nd Session, 2021
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss her application for the reimbursement of medical expenses.
Consideration 9
Extract:
The complainant alleges that moral injury was caused by the Organisation’s breach of its duty of care. However, a refusal to reimburse expenses based on the rules in force, even if it results from an error in their application, cannot be regarded as a breach of the duty of care. This argument will therefore be dismissed.
Keywords:
duty of care; moral injury;
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