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Non official (705, 59, 684, 698, 706, 760, 889,-666)
You searched for:
Keywords: Non official
Total judgments found: 42
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Judgment 4809
137th Session, 2024
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks a contractual redefinition of his employment relationship and the setting aside of the decision not to renew his last contract.
Consideration 10
Extract:
It is true that, under the Tribunal’s case law, the decision not to renew an official’s contract of employment must, even if it is a matter for the competent authority’s discretion, be based on valid reasons that must be communicated to the staff member concerned (see, for example, Judgments 3914, considerations 14, 15 and 18, 2708, consideration 12, and 1273, consideration 8).
However, this case law does not apply to external collaboration contracts, which are not contracts appointing officials. It is plain from the preceding consideration that the contract to which the non-renewal decision applied – which was, by definition, the last contract previously concluded – should be regarded, unlike the earlier contracts, as an external collaboration contract.
Reference(s)
ILOAT Judgment(s): 1273, 2708, 3914
Keywords:
external collaborator; non official; non-renewal of contract;
Consideration 2
Extract:
The Organization submits that the Tribunal does not have jurisdiction to hear the complaint because the complainant, who held external collaboration contracts for most of the period in question, was not an official of the Office.
This challenge to the Tribunal’s jurisdiction – which, in the form in which it is presented, relates to the substance of the dispute – is irrelevant in this case.
It is true that, under the Tribunal’s case law, where an external collaboration contract confers jurisdiction for settling disputes concerning its performance on another judicial authority or – as is more often the case – on an arbitral body, the Tribunal cannot hear such a dispute, even where it concerns precisely the redefinition of the contract in question as a contract appointing an official (see, in particular, Judgments 4652, considerations 16 to 20 and 22, and 2888, considerations 5 and 6).
However, plainly this case law does not apply when that contract grants jurisdiction to the Tribunal to hear disputes relating to its performance, as permitted under Article II, paragraph 4, of the Tribunal’s Statute (see Judgments 4652, consideration 21, and 2888, consideration 7). In this case, the external collaboration contracts concluded by the ILO and the complainant all included a provision in paragraph 12 specifically conferring jurisdiction on the Tribunal to hear “[a]ny dispute arising out of [their] application or interpretation”. The Tribunal therefore has jurisdiction to rule on any dispute relating to their possible redefinition.
Reference(s)
ILOAT Judgment(s): 2888, 4652
Keywords:
arbitration; competence; external collaborator; non official; ratione personae;
Judgment 4733
136th Session, 2023
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who was serving on a National Project Personnel contract with the FAO Representation in Malawi, contends that the FAO breached his right to due process and disregarded its own rules and regulations, and that he was subject to unequal treatment.
Judgment keywords
Keywords:
competence; complaint dismissed; non official; ratione personae; summary procedure;
Considerations 3-4
Extract:
Pursuant to Article II, paragraph 5, of its Statute, “[t]he Tribunal shall [...] be competent to hear complaints alleging non-observance, in substance or in form, of the terms of appointment of officials”. The Tribunal is therefore not competent to hear complaints filed by individuals who do not have the status of an official of an organization recognizing its jurisdiction (see Judgment 3049, consideration 4).
In his complaint, the complainant provides a copy of his NPP contract, which included general conditions as well as a specific clause on his legal status. In this clause it was clearly indicated that the complainant was retained to work as “an independent contractor” and not as “an official of [the] FAO”. Although certain other clauses in the contract were not incompatible with the existence of an employer-employee relationship (especially those referring to specific provisions of the FAO Administrative Manual), they cannot be construed as negating the clear indication in the specific clause on the complainant’s legal status. He is not an official and cannot invoke the Tribunal’s jurisdiction.
Reference(s)
ILOAT Judgment(s): 3049
Keywords:
competence; non official; ratione personae;
Judgment 4652
136th Session, 2023
Green Climate Fund
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to pay him compensation equal to the difference between his remuneration as a consultant and the value of the salary and benefits received by staff members performing similar functions.
Judgment keywords
Keywords:
competence; complaint dismissed; consultant; non official; ratione personae;
Considerations 8, 11-21
Extract:
The Tribunal is aware that in many States there is an ongoing debate as to whether the existence of an employment relationship can or should be recognised in certain situations where, although such a relationship is not expressly provided for in the contract, other factors support a conclusion that the person concerned is, in fact, an employee and must be treated as such.
[…]
The Tribunal’s jurisdiction is established and defined by its Statute. It is bound to exercise the jurisdiction so conferred. Centrally, it is to hear complaints of officials having regard to the terms of Article II. Pursuant to Article II, paragraph 5, of its Statute, “[t]he Tribunal shall [...] be competent to hear complaints alleging non-observance, in substance or in form, of the terms of appointment of officials”. The Tribunal’s jurisdiction does not therefore extend to complaints filed by individuals who do not have the status of an official in the defendant organisations (see Judgment 3049, consideration 4).
Although the determination of that status does not depend exclusively on the wording of the contract or the staff regulations and the Tribunal may need to rely on other documents (see, for example, Judgment 3359, consideration 13), in the present case each contract contains a very clear definition of the relationship between the parties.
In Clause G-19 it is clearly indicated that the contract “creates an independent contractor relationship” and that nothing contained in it “shall be construed as establishing or creating between the Fund and the Consultant a relationship of employer and employee [...]”. Although certain other clauses in these contracts are not incompatible with the existence of an employer-employee relationship, they cannot be construed as negating the clear indication in Clause G-19 as to the legal status of the complainant.
Whilst the complainant argues that offering the contracts to him as an “independent consultant” was an abuse of power, because they were offered in those terms for an ulterior purpose, namely, to disguise the true nature of the employer-employee relationship which was intended to be created, there is nothing in the file to suggest that the terms of the contracts did not reflect the parties’ true intentions.
There is no basis on which the complainant can claim that he should be retroactively assigned a different contractual status, given that he had freely signed both contracts (see, for example, Judgments 2734, consideration 1, 2415, consideration 4, and 2308, consideration 17).
Moreover, it is noteworthy that Clause G-21 provides specifically that any dispute not resolved amicably shall be finally settled by arbitration. The Tribunal has already had occasion to rule that it has no jurisdiction to hear a dispute relating to a contract concluded with an independent contractor or collaborator which contains such an arbitration clause (see Judgment 2888, consideration 5, and the case law cited therein).
In Judgment 2888, consideration 6, the Tribunal further explained that […]
These considerations apply, in the same way, to the present case.
The existence of an arbitration clause in some contracts has been treated by the Tribunal as evidencing an agreement to exclude the jurisdiction of the Tribunal (see Judgments 3705, consideration 4, 2688, consideration 5, 2017, consideration 2a, and 1938, consideration 4).
It is obvious that the inclusion of an arbitration clause in the contract of an official would be contrary to the Statute of the Tribunal and the basis on which organisations recognize the Tribunal’s jurisdiction. Indeed, if a person is or was an official of an organisation which has recognized the Tribunal’s jurisdiction, that person has a right to commence and maintain proceedings alleging non-observance of the terms of appointment or of the staff regulations and can do so notwithstanding the existence of an arbitration clause in a contract between that person and the organisation concerned.
The inclusion of an arbitration clause in the contract of a non-official is not unlawful in itself. In this case, as noted above, the arbitration clause specifically provides for arbitration by a single arbitrator in the Republic of Korea.
The Tribunal notes that there appears to be no time limit in the contract for the submission of the dispute to arbitration and the complainant may, if he so wishes, advance all his arguments before the arbitrator.
The Tribunal would be competent to hear disputes concerning the execution of a contract of a non-official where the contract itself provides for the Tribunal’s competence, as provided for by Article II, paragraph 4, of its Statute (see Judgments 967 and 803).
Reference(s)
ILOAT Judgment(s): 803, 967, 1938, 2017, 2308, 2415, 2688, 2734, 2888, 3049, 3359, 3705
Keywords:
arbitration; competence; non official; ratione personae;
Judgment 4526
134th Session, 2022
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his contract for misconduct.
Judgment keywords
Keywords:
competence; complaint dismissed; non official; ratione personae; unops;
Consideration 8
Extract:
The Tribunal recently concluded in Judgment 3551, consistent with more recent case law, that a person in a situation broadly analogous to that of the complainant could not avail himself of the Tribunal’s jurisdiction as he was not an official of the defendant organisation. Not only was the existence of an arbitration clause viewed as relevant in Judgment 3551 in determining the status of the complainant, the existence of such a clause has, in a number of cases concerning individuals on contract, been treated as evidencing an agreement to exclude the jurisdiction of the Tribunal (see, for example, Judgments 1938, consideration 4, 2017, consideration 2(a), 2688, consideration 5, 2888, consideration 5, and 3705, consideration 4).
Reference(s)
ILOAT Judgment(s): 1938, 2017, 2688, 2888, 3551, 3705
Keywords:
competence; non official; ratione personae; receivability of the complaint;
Judgment 4403
132nd Session, 2021
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reject his claim for additional compensation for the injuries suffered in connection with the performance of his contract and to deny him access to the internal appeal process.
Judgment keywords
Keywords:
competence of tribunal; complaint dismissed; non official; ratione personae;
Consideration 7
Extract:
The fact that consultants are defined […] as staff members for purposes of the Compensation Plan insurance only does not sustain a conclusion that a consultant covered by this insurance policy is an official for the purposes of Article II, paragraph 5, of the Statute of the Tribunal. Consultants like the complainant were not.
Keywords:
competence of tribunal; insurance; non official; ratione personae;
Judgment 4045
126th Session, 2018
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who had worked at the EPO as a consultant, asks the Tribunal to confirm that he was employed under the conditions applicable to permanent employees or, alternatively, to auxiliary staff.
Judgment keywords
Keywords:
complaint dismissed; non official; ratione personae;
Consideration 3
Extract:
The complaint will be dismissed. The foregoing shows that the complainant was an independent contractor employed by the private company to provide the subject services to the EPO. He had no employment connection with the EPO deriving from a contract of employment or from the status of a permanent employee (see Judgment 2649, under 8). He was not an EPO employee or an auxiliary staff member. His employment relationship was with the private company. He never belonged to the category of employees to whom the Service Regulations for permanent employees of the Office or the Conditions of Employment for Auxiliary Staff applied. There are therefore no similarities between his employment relationships with the EPO which would bring him within the principles stated in Judgment 3090, considerations 4 to 7, for example. In that judgment, the Tribunal held that it had competence, under Article II, paragraph 5, of its Statute, to hear the complaint of a person who had been employed under successive short-term contracts for seven years with the World Intellectual Property Organization.
Reference(s)
ILOAT reference: Article II, paragraph 5, of the Statute
ILOAT Judgment(s): 2649, 3090
Keywords:
competence of tribunal; non official; ratione personae;
Judgment 3938
125th Session, 2018
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to confirm her appointment due to the rejection of her application for a work visa by the authorities of the country of her duty station.
Judgment keywords
Keywords:
appointment; competence of tribunal; complaint dismissed; contract; host state; non official; offer withdrawn; ratione personae; receivability of the complaint;
Considerations 11 and 12
Extract:
[The Organization] advised the complainant that [...] the [host State] authorities [...] would not issue her an entry visa [...].
As the complainant’s appointment was conditional on her obtaining a work visa, her appointment was not confirmed. It follows that as she was not a UNESCO official, her complaint is irreceivable and will be dismissed.
Keywords:
competence of tribunal; non official; ratione personae; receivability of the complaint; terms of appointment;
Judgment 3705
122nd Session, 2016
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks a re-characterisation of her employment relationship with WIPO.
Consideration 2
Extract:
As the complainant cannot be considered an official, she does not have access to the Tribunal (see Judgments 2017, under 2(a), 3049, under 4, and 3550, under 7).
Reference(s)
ILOAT Judgment(s): 2017, 3049, 3550
Keywords:
competence of tribunal; non official; official;
Judgment 3653
122nd Session, 2016
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions not to appoint him to a post, not to renew his contract, not to compensate him for “extra-contractual” work and not to compensate him on account of defamation by his former supervisor and for exposure to asbestos.
Consideration 4
Extract:
There is [...] no provision under which the Tribunal is competent to hear the claim concerning the complainant’s non-selection for the post [...]. As he was not selected for the post, he did not become a WFP staff member from that application and therefore obtained no right to lodge an internal appeal under Staff Regulation 301.11.1 to challenge the non-selection. Because of his non-selection, he had not entered into a contractual relationship with the WFP. Accordingly, by virtue of Article II, paragraph 5, of the Tribunal’s Statute, he has no standing to bring a claim before the Tribunal alleging the non-observance of the terms and conditions of an appointment which he did not have. This position was explained in Judgment 1509, consideration 16 [...].
Reference(s)
ILOAT reference: Article II, paragraph 5, of the Statute
ILOAT Judgment(s): 1509
Keywords:
candidate; external candidate; locus standi; non official; ratione personae; status of complainant;
Judgment 3648
122nd Session, 2016
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the validity of a competition process in which she participated and the lawfulness of the ensuing appointment.
Consideration 4
Extract:
In its surrejoinder WIPO submits, for the first time since this dispute began, that the complainant did not fulfil one of the conditions of the vacancy announcement published on 18 May 2011, namely, that candidates should have “[a]t least 15 years’ experience in technical cooperation or external relations”. It infers from this that the complainant, who was therefore not eligible for the post advertised, has no cause of action to challenge the outcome of the disputed selection procedure and that her complaint is hence irreceivable.
Keywords:
non official;
Judgment 3551
120th Session, 2015
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: As the complaint is clearly irreceivable, it is summarily dismissed.
Consideration 3
Extract:
"The Tribunal clearly has no jurisdiction to hear this complaint. Pursuant to Article II, paragraph 5, of its Statute, “[t]he Tribunal shall […] be competent to hear complaints alleging non-observance, in substance or in form, of the terms of appointment of officials”. The complainant stated in the complaint form that he filed the complaint in his capacity as a former official. However, according the express terms of the SSA under which he was employed, the complainant did not have the status of a WHO official. As the complainant cannot be considered as an official or former official of WHO and is not covered by WHO’s Staff Rules and Regulations, he has no access to this Tribunal (see Judgments 1034, under 3, and 3049, under 4)."
Reference(s)
ILOAT Judgment(s): 1034, 3049
Keywords:
competence; non official; ratione personae; receivability of the complaint; special service agreement; staff regulations and rules; status of complainant;
Judgment 3549
120th Session, 2015
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: As the complaint is clearly irreceivable, it is summarily dismissed.
Consideration 3
Extract:
"Pursuant to Article II, paragraph 5, of its Statute, “[t]he Tribunal shall […] be competent to hear complaints alleging non-observance, in substance or in form, of the terms of appointment of officials”. At no point in time did the complainant have the status of an official of the ICC. As the Tribunal has often recalled in its case law, external candidates for employment and persons who have not concluded a contract of employment with an organisation that has recognised the jurisdiction of the Tribunal are not within the latter’s jurisdiction (see, for example, Judgments 803, under 3, 1554, under 10, 1964, under 4, and 3382, under 4)."
Reference(s)
ILOAT Judgment(s): 803, 1554, 1964, 3382
Keywords:
candidate; external candidate; non official; ratione personae;
Judgment 3542
120th Session, 2015
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: As the Tribunal cannot hear complaints relating to recruitment procedures for external candidates, the complaint is dismissed.
Consideration 5
Extract:
"A steady line of precedent has it that the Tribunal may not hear complaints challenging a decision to reject the candidature of an external applicant for a post in an international organisation that has recognised the Tribunal’s jurisdiction (see Judgment 2657, under 3). This case law must apply here by analogy, since the complaint concerns the circumstances surrounding recruitment procedures within two administrative entities which are clearly identified as being separate, though they belong to the same international organisation."
Reference(s)
ILOAT Judgment(s): 2657
Keywords:
candidate; external candidate; non official; ratione personae; receivability of the complaint;
Judgment 3468
119th Session, 2015
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: As the complaint does not raise issues over which the Tribunal has jurisdiction, it is irreceivable and is summarily dismissed.
Consideration 4
Extract:
"[I]t is clear that these issues concerned the application of a policy to the complainant while he was seeking consultancy work with the FAO but when he was no longer an official of the Organization. The policy had no practical or legal application to the complainant when he was an official of the FAO. Accordingly the issues sought to be raised by the complainant in his internal appeal and before the Tribunal are not issues concerning the non-observance of the terms of his appointment as an official of the FAO or of the application of the Staff Regulations applicable to him during his period of employment with that Organization. The complainant’s challenge is made as a potential consultant rather than as a former official. Consequently, his complaint is based on his status as a potential consultant. Having regard to Article II of the Tribunal’s Statute, the complaint does not raise issues over which the Tribunal has jurisdiction."
Keywords:
competence of tribunal; former official; non official; ratione personae; status of complainant;
Judgment 3459
119th Session, 2015
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The Tribunal found that it was not competent to hear the complaint and summarily dismissed it.
Consideration 4
Extract:
"[T]he fundamental difficulty for the complainant in pursuing her complaint in this Tribunal is that she was not, at the time of the impugned decision, an “official” of the EPO for the purposes of Article II of the Tribunal’s Statute having regard to the way that concept of “official” has been established and entrenched in the jurisprudence of the Tribunal. The complainant does not (and on her account of the facts probably could not) point to any contract under or by which she was appointed an official of the EPO. Her employment (in the loosest sense of the word) or engagement to work at the EPO was through a third party, a private company. Accordingly, her complaint is not one the Tribunal is competent to hear."
Keywords:
external collaborator; non official; ratione personae;
Judgment 3448
119th Session, 2015
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The Tribunal dismissed the complaint because the non-renewal of a fixed-term contract is discretionary.
Consideration 6
Extract:
"[The complainant] shows no evidence that he had entered into a contract of employment with the ILO for the period 1993 to 2002, as the Tribunal’s case law requires (see, for example, Judgments 817, under 8, and 2926, under 7-9). During that period he was employed by a firm which the ILO had sub-contracted. It is a contract with the ILO concluded in accordance with the rules in force which conferred on him the status of an official bound to the Organization during the period from 2002 to 30 April 2010 (see Judgment 2926, under 7)."
Reference(s)
ILOAT Judgment(s): 817, 2926
Keywords:
non official; ratione personae; subcontractant;
Judgment 3383
118th Session, 2014
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: As the complainant has never been an official of CERN and did not impugn a decision affecting his rights, his complaint is summarily dismissed.
Judgment keywords
Keywords:
complaint dismissed; non official; official; ratione personae; receivability of the complaint; status of complainant; summary procedure;
Judgment 3382
118th Session, 2014
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complaint filed by an unsuccessful external candidate for employment was summarily dismissed as being not within the scope of the Tribunal’s competence.
Judgment keywords
Keywords:
candidate; complaint dismissed; external candidate; non official; official; ratione personae; receivability of the complaint; status of complainant; summary procedure;
Judgment 3381
118th Session, 2014
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complaint was summarily dismissed on the ground that the complainant was not an official for the purpose of Article II of the Tribunal’s Statute.
Consideration 6
Extract:
"As there was no meeting of minds between the parties concerning an appointment and the complainant did not become a staff member of IOM and, therefore, not an official for the purpose of Article II of the Tribunal’s Statute, the complaint is clearly irreceivable."
Reference(s)
ILOAT reference: Article II of the Statute
Keywords:
appointment; non official; official; ratione personae; receivability of the complaint; status of complainant; summary procedure;
Judgment 3247
116th Session, 2014
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant was on reimbursable loan from UNOPS to the Global Fund, when she was notified of the non-renewal of her contract for unsatisfactory performance.
Consideration 20
Extract:
"In a case such as the present, jurisdiction is limited and defined by organisations submitting to the Tribunal’s jurisdiction and the complainant being an official (or former official) of an organisation that has so submitted (see Judgments 2503, consideration 4, and 3049, consideration 4). The complainant was not an official of the Global Fund at any relevant time. She was an official of UNOPS, which has not submitted to the Tribunal’s jurisdiction. Accordingly, the Tribunal has no jurisdiction to determine the complainant’s complaint save for determining whether it has jurisdiction. The complaint is therefore not receivable."
Reference(s)
ILOAT Judgment(s): 2503, 3049
Keywords:
competence of tribunal; iloat; locus standi; non official; ratione personae; receivability of the complaint; status of complainant;
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