Cause of action (77,-666)
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Keywords: Cause of action
Total judgments found: 273
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Judgment 3921
125th Session, 2018
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges modifications to the grading and salary structure.
Consideration 6
Extract:
As to the complainant’s right to maintain these proceedings on behalf of the staff of the Global Fund in his capacity as a member of the Staff Council, there is some support for the proposition he can do so in earlier jurisprudence of the Tribunal (see, for example, Judgment 2919, consideration 5). However that judgment does not reflect the Tribunal’s current case law (see, for example, Judgments 3515, consideration 3, and 3642, considerations 9 to 12 and 14). The adoption of the new arrangements in relation to salary structure and grading system was a general decision requiring implementation for each staff member. That general decision cannot be challenged by an individual staff member even if that individual is a member of the staff committee unless and until the general decision is implemented. That is not to say, it cannot be challenged when implemented by challenging a payslip that reflects its implementation. A recent example concerned a salary freeze where the complainants were able to challenge the general decision by challenging its implementation in a payslip. While the general decision to freeze salaries was not immediately reflected in the payslips (the complainants’ salaries remained the same and the freeze would only operate in the future), the Tribunal was able to conclude, in that case, that the general decision as implemented in the payslips was liable to cause injury because the decision to freeze salaries would necessarily negatively impact on the salaries in due course (see Judgment 3740, consideration 11). Nonetheless, as a matter of general principle, a complainant must, in order to raise a cause of action, allege and demonstrate arguably that the impugned administrative decision caused injury to her or him or was liable to cause injury (see, for example, Judgment 3168, consideration 9).
Reference(s)
ILOAT Judgment(s): 2919, 3168, 3515, 3642, 3740
Keywords:
cause of action; general decision; individual decision; locus standi; scale; staff representative;
Consideration 9
Extract:
While good management practice would suggest such consultation is desirable, the case law of the Tribunal which has insisted on consultation and set aside decisions where there has been none (see, for example, the discussion in Judgment 3883, considerations 20 to 21) has been rooted in a legal obligation imposed by a normative legal document (for example, a staff rule or regulation) that the organisation consult a specified body in a specified way (see, for example, Judgments 3736, consideration 7, and 3449, consideration 7). It will be the terms of the normative legal document that will provide the yardstick by reference to which the content of the obligation to consult will be measured and whether it has been satisfied. Insofar as the complainant alleges that there has been a failure to consult without pointing to any legal requirement for such consultation, he has no cause of action and, in this respect, the complaint is irreceivable. In this respect the complainant does not, as the Global Fund argues, point to any non-observance of the terms of his appointment or of the Staff Regulations, to use the language of Article II, paragraph 5, of the Tribunal’s Statute.
Reference(s)
ILOAT Judgment(s): 3449, 3736, 3883
Keywords:
advisory body; cause of action; patere legem; staff representative;
Judgment 3885
124th Session, 2017
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to defer the promulgation of the revised post adjustment multiplier for staff of the UN system working in New York.
Consideration 2
Extract:
The Tribunal observes that, as the challenged decision pertained to the post adjustment multiplier in New York, it affected only the remuneration of officials in the Professional category and above based there. The complainant, at the relevant time, was based in Geneva and the decision did not affect him or his terms and conditions of employment as required by Article II, paragraph 1, of the Statute of the Tribunal.
Reference(s)
ILOAT reference: Article II, paragraph 1, of the Statute
Keywords:
cause of action;
Judgment 3775
123rd Session, 2017
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the lawfulness of the Office Procedure on “Rental and car advances for internationally-recruited officials”, on the grounds that the Staff Union was not consulted before it was issued.
Consideration 7
Extract:
The complainant also initiated his grievance in his capacity as an official. However, Article 10.1 of the Staff Regulations and Article 2(1) of the Recognition and Procedural Agreement, which relate to collective bargaining, do not confer any individual rights on staff members.
Keywords:
cause of action;
Judgment 3760
123rd Session, 2017
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to amend the Rules of the Medical Benefits Fund.
Consideration 8
Extract:
As the Tribunal reiterated in Judgment 3426, under 16, “[t]o be receivable a complaint must disclose a cause of action”.
Reference(s)
ILOAT Judgment(s): 3426
Keywords:
cause of action;
Judgment 3740
123rd Session, 2017
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the legality of changes to the FAO General Service category staff salary scale consequent to the implementation of recommendations contained in an ICSC report in 2012 on local employment conditions in Rome.
Consideration 11
Extract:
The Tribunal notes that the revised salary scale was not applied to the complainants and did not adversely and directly affect them. However, as of 1 February 2013 up to the date the secondary salary scale reached the primary salary scale applicable to the complainants, the complainants would not be paid any interim salary adjustments, that is, their salaries were frozen. Although the February paysheets therefore did not reflect any change in their salaries, nor would any change be reflected in subsequent paysheets while the freeze was in effect, at that point in time it was evident that the salary freeze was liable to cause them financial injury. As the Tribunal explained in Judgment 3168, under 9, for there to be a cause of action a complainant must demonstrate that the contested administrative action caused injury to the complainant’s health, finances or otherwise or that it is liable to cause injury. Accordingly, the complaints are receivable.
Reference(s)
ILOAT Judgment(s): 3168
Keywords:
cause of action; freeze of salary; payslip;
Judgment 3739
123rd Session, 2017
International Fund for Agricultural Development
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges changes to the IFAD General Service Staff salary scale as a result of the implementation of recommendations contained in an ICSC report in 2012 on local employment conditions in Rome.
Consideration 8
Extract:
The Tribunal notes that the revised salary scale was not applied to the complainant and did not adversely and directly affect him. However, as of 1 February 2013 up to the date at which the secondary salary scale reached the level of the primary salary scale applicable to the complainant, the complainant would not be paid any interim salary adjustments, that is, his salary was frozen. Although the February payroll therefore did not reflect any change in his salary, nor would any change be reflected in subsequent payrolls while the freeze was in effect, at that point in time it was evident that the salary freeze was liable to cause him financial injury. As the Tribunal explained in Judgment 3168, under 9, for there to be a cause of action a complainant must demonstrate that the contested administrative action caused injury to the complainant’s health, finances or otherwise or that it is liable to cause injury. Accordingly, the complaint is receivable.
Reference(s)
ILOAT Judgment(s): 3168
Keywords:
cause of action; freeze of salary; payslip;
Judgment 3733
123rd Session, 2017
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision dismissing his two internal appeals on health-related claims.
Consideration 12
Extract:
A cause of action by an official based on the negligence of the organisation that employs her or him contains several elements (see, for example, Judgment 2804, consideration 25). The first is that the organisation has failed to take reasonable steps to prevent a foreseeable risk of injury. The second is that liability in negligence is occasioned when the failure to take such steps causes an injury that was foreseeable.
Reference(s)
ILOAT Judgment(s): 2804
Keywords:
cause of action; negligence;
Judgment 3709
122nd Session, 2016
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, a retired UNESCO official, impugns the decision of the Director-General not to give her access to the submissions of another official who filed a complaint against UNESCO with the Tribunal.
Judgment keywords
Keywords:
cause of action; competence of tribunal; complaint dismissed; former official; summary procedure;
Consideration 4
Extract:
Pursuant to Article II, paragraph 5, of its Statute the Tribunal is competent to hear complaints alleging “non-observance, in substance or in form, of the terms of appointment of officials and of the provisions of the Staff Regulations”. In this case, the Tribunal finds that the complainant, a former official of UNESCO, does not allege any breach of her terms of appointment or of Staff Regulations applicable to her.
Reference(s)
ILOAT reference: Article II, paragraph 5, of the Statute
Keywords:
cause of action; competence of tribunal; former official;
Judgment 3698
122nd Session, 2016
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the abolition of the Audit Committee of the EPO Administrative Council.
Judgment keywords
Keywords:
cause of action; complaint dismissed;
Considerations 1-2
Extract:
The Tribunal has jurisdiction under Article II, paragraph 5, of its Statute to hear complaints alleging “non-observance, in substance or in form, of the terms of appointment of officials and of provisions of the Staff Regulations”. In consequence, when “[t]he complainant does not allege the non-observance of any of the terms of his appointment or of any of the Staff Regulations applicable to him”, his complaint must be held to be irreceivable (see Judgment 2952, under 3).
The Tribunal observes that the complainant does not allege any violation of the terms of his appointment or of staff regulations that are applicable to him. His case does not relate to his administrative status but rather to the organisation of the EPO, his employer, for which he is plainly not responsible.
Reference(s)
ILOAT Judgment(s): 2952
Keywords:
cause of action; no cause of action; receivability of the complaint;
Judgment 3671
122nd Session, 2016
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges two service orders.
Consideration 3
Extract:
[T]he Tribunal’s case law establishes that insofar as an official alleges a failure to respect the prerogatives of a body of which she or he was a member, she or he has a cause of action which gives her or him standing to bring a complaint (see, for example, Judgment 3546, under 6). In the instant case, the complainant is a member of the Staff Council and she submits that the latter was not consulted before Service Order No. 13/03 was published. In accordance with the case law, the complainant therefore has a cause of action before the Tribunal, even though this service order constitutes a regulatory measure which may ordinarily be challenged only indirectly in the context of an appeal lodged against an individual decision based on it.
Reference(s)
ILOAT Judgment(s): 3546
Keywords:
cause of action; general decision; staff representative;
Judgment 3647
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 he participated and the lawfulness of the ensuing appointment.
Consideration 4(b)
Extract:
[T]he fact that the real reason for the contested decision was initially concealed from the complainant misled him as to whether he had an interest in challenging it. Indeed, although the complainant presumably had no reason to object when he was informed that the selection process had been cancelled because of “organizational changes”, which, by their very nature, are made at the Director General’s discretion, this was plainly not the case when it became apparent that this decision was really designed to avoid the foreseeable outcome of the competition in which he had been shortlisted. The complainant was therefore unduly deprived of the opportunity to appeal against this decision within the normal time limit, in breach of the principle of good faith.
Keywords:
cause of action; good faith; time limit;
Judgment 3645
122nd Session, 2016
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, a former staff member of WIPO, contests the rejection of her request to open an investigation into alleged misconduct on the part of the Director General.
Judgment keywords
Keywords:
cause of action; complaint dismissed;
Consideration 13
Extract:
As the complaint does not disclose a cause of action, it does not meet the requirement of Article II, paragraph 5, of the Statute.
Reference(s)
ILOAT reference: Article II, paragraph 5, of the Statute
Keywords:
cause of action;
Judgment 3620
121st Session, 2016
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to retroactively implement the transitional measure accompanying the replacement of the former invalidity pension with an invalidity allowance.
Consideration 3
Extract:
"The argument advanced by the EPO on the question of receivability is comparatively straightforward. The point made is that decision CA/D 15/12 involved the establishment of a regulatory legal framework which required implementation by the President through individual decisions. The EPO refers to a line of judgments of the Tribunal to the effect that a complainant can impugn a decision of this character only if it directly affects her or him. A general decision cannot be impugned by a staff member unless and until it is applied in a manner prejudicial to her or him. The EPO refers to a number of authorities including a comparatively recent judgment, Judgment 3291, under 8. The complainant seeks to answer this argument in her rejoinder by saying that she was directly and adversely affected by the decision. However she does not point to any decision implementing CA/D 15/12 directly affecting her either after the decision was made on 26 October 2012 or during the period of its retroactive operation. That decision concerned the transitional measure applicable to individuals already in receipt of an invalidity pension at the time when the new scheme came into effect on 1 January 2008. The complainant was not in the class affected by the transitional measure. Consequently, the EPO’s argument should be accepted and the complaint should be dismissed as irreceivable."
Reference(s)
ILOAT Judgment(s): 3291
Keywords:
cause of action; general decision;
Judgment keywords
Keywords:
cause of action; complaint dismissed;
Judgment 3557
120th Session, 2015
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: As the complaint is clearly irreceivable, it is summarily dismissed.
Consideration 3
Extract:
"It is obvious that the complainant does not have standing to submit such a claim. He does not specifically allege any non-observance of his terms of appointment as required by Article II, paragraph 5, of the Tribunal’s Statute. While in certain circumstances staff representatives may challenge the appointment of another official, in so doing they must allege a breach of their own individual rights, which might include, for example, the right to be consulted (see, for example, Judgments 2236, under 4, and 3449, under 4) or the right to compete for the post (see, for example, Judgment 2755, under 6). In the present case, the complainant does not clearly articulate any violation of his rights as a member of the selection board."
Reference(s)
ILOAT Judgment(s): 2236, 2755, 3449
Keywords:
cause of action; locus standi; selection board; staff representative;
Consideration 4
Extract:
"[T]o the extent that the complainant appears to be seeking to defend the general interest of the staff in having that particular vacancy filled by a lawful procedure, not only does he not have standing to do so either individually or as a member of a group, he also has a conflict of interest. Indeed, given that he participated in the selection process, he could not have been – even theoretically – a candidate for that vacancy. His claim is therefore clearly irreceivable as he lacks locus standi to bring it."
Keywords:
cause of action; locus standi; selection procedure;
Judgment 3546
120th Session, 2015
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the principle of extending the active service of a staff member beyond the age of 65 and the terms thereof.
Considerations 12-15
Extract:
"The Tribunal considers that the complainant has no cause of action entitling him to ask the Tribunal to order the ILO to reimburse the UNJSPF with the sums which it did not receive in respect of the extension of Ms D.’s appointment.
It must first be noted that, contrary to his submissions, his status as an official participating in an individual capacity in the UNJSPF does not give him a cause of action in this respect, since the fact that contributions to the Fund were not made in respect of another official’s appointment has no impact on his own situation. The complainant cannot therefore legitimately claim such reimbursement by the Organization. Nor indeed would he be entitled to request that the official herself be ordered to repay sums which she might have received in error (see Judgments 2281, under 4(a) and(b), and 3206, under 20). The complainant’s reference to Judgment 1330, concerning a decision which, on the contrary, affected the pension rights of the complainants themselves, is of no relevance here.
Neither can the complainant derive a cause of action, in this connection, from his status as a staff representative. Although he invokes the general interest in safeguarding the financial interests of the UNJSPF, or in ensuring that the Office’s governance rules are strictly observed, such an interest, however legitimate it might be, cannot in itself be regarded as one which the Tribunal is competent to protect.
In addition, the contention that the benefits enjoyed by Ms D. during the disputed period might have jeopardized respect for other officials’ pension rights by compromising the financial equilibrium of the UNJSPF must plainly fail, having regard to the amounts in question and the size of the Fund’s budget.
Since the Office’s special treatment of Ms D. does not have any direct and immediate impact on the terms of employment or the rights of other officials, the complainant has no standing to bring the above-mentioned claim in his capacity as a member of the Staff Union Committee (see, for cases raising similar issues, Judgments 3342, under 9 to 12, and 3343, under 2 to 5).
For the same reasons, the complainant has no standing to bring that claim in his capacity as a participants’ representative in the ILO Staff Pension Committee, on which he likewise relies."
Reference(s)
ILOAT Judgment(s): 1330, 2281, 3206, 3342, 3343
Keywords:
cause of action; locus standi; unjspf;
Judgment 3544
120th Session, 2015
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the practice followed in granting appointments without limit of time to officials in the Director and Principal Officer category.
Consideration 4
Extract:
"Insofar as he [...] alleges a failure to respect the prerogatives of a body of which he himself was a member, the complainant has a cause of action which gives him standing to bring this complaint (see, for example, Judgment 2036, under 4, and Judgment 3053, as well as the analysis thereof in Judgment 3291, under 7)."
Reference(s)
ILOAT Judgment(s): 2036, 3053, 3291
Keywords:
cause of action; staff representative;
Consideration 5
Extract:
"The ILO’s argument that, in the past, Staff Union representatives had never thought it necessary to challenge the practice in question and had apparently even implicitly acquiesced to it cannot negate the complainant’s right to rely on the cause of action thus recognised."
Keywords:
cause of action; staff representative;
Judgment 3534
120th Session, 2015
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The two complainants, who were members of the General Advisory Committee, contest the nomination of the Chairman of the Committee for the year 2010.
Considerations 2 & 5
Extract:
The issue is a confined one. The individual appointed as Chairman was a principal director employed on contract. The complainants argue and the EPO disputes, that the applicable regulatory provisions precluded an employee on contract being appointed to this position.
[...]
However, Article 38(2) of the Service Regulations empowered the President to appoint the Chairman and the power was unconfined as to who might be appointed. While Article 2(2) of the Service Regulations is not a model of clear drafting, it is tolerably clear that under the Service Regulations both permanent employees and employees on contract referred to in Article 1 could have been either members of, amongst other bodies, the GAC or chairmen of those bodies. Article 1 made clear that the Service Regulations apply to both permanent employees and “principal directors of the Office employed on contract”. Thus the Service Regulations established that a principal director on contract could be a member of the GAC or appointed as Chairman of the GAC.
Keywords:
cause of action; member of an internal body;
Judgment 3515
120th Session, 2015
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants, in their capacity as staff representatives, impugn the decision to pay a collective reward to permanent or contract employees in active service during 2011.
Considerations 2-3
Extract:
The EPO challenges the receivability of the complaints. It does so on the basis that the complainants were challenging a decision of general application that had not been individually and prejudicially applied to them. It refers, in particular, to Judgment 1852, consideration 2, and Judgment 3291, consideration 8, and quotes passages from each. It also refers to Judgments 61, 92, 103 and 622.
In their rejoinder, the complainants refer to Judgment 1147, consideration 4, Judgment 1618, consideration 7, Judgment 2649, consideration 8, Judgment 2791, consideration 2, and Judgment 2919, consideration 5, in support of the proposition that a staff committee member can challenge a general decision which adversely affects staff or groups of staff. Also, and more specifically, they argue that even if a staff representative cannot challenge the substantive provisions of a general decision, the representative is always in a position to challenge a breach of procedure.
The complaints are irreceivable. The general decision in CA/D 17/12 is plainly a decision that would have required implementation. When that occurred staff aggrieved by the implementation could have pursued their grievances internally with the possibility, if the grievance was unresolved, of pursuing it before the Tribunal. However a staff representative cannot challenge a general decision governing all officials which will require individual implementing decisions. Judgment 3427 (at considerations 35 and 36) is a recent illustration of a case in which complaints were dismissed as irreceivable on this basis. To the extent that Judgment 2919 (which the complainants rely upon), indicates otherwise, it is at odds with the general jurisprudence of the Tribunal. There is a an oblique reference in the complainants’ pleas that there had not been proper consultation with the General Advisory Committee (GAC) and this is said to render the complaints receivable or at least the complaint of Mr T., who was a member of the GAC. However that issue was not raised in the internal application for review and cannot be raised in the Tribunal.
Reference(s)
ILOAT Judgment(s): 1147, 1618, 1852, 2649, 2791, 2919, 3291, 3427
Keywords:
cause of action; locus standi; staff representative;
Judgment 3466
119th Session, 2015
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complaint, which challenges a rule of general application, is clearly irreceivable and is summarily dismissed.
Judgment keywords
Keywords:
cause of action; complaint dismissed; general decision; summary procedure;
Consideration 3
Extract:
"An official of an organisation cannot lawfully challenge before the Tribunal a rule of general application unless and until it is applied in a manner prejudicial to that official (see Judgments 1852, under 3, 2822, under 6, and 2953, under 2). In the present case the complainant’s challenge to Circular No. 323 is of that character. The policy in the Circular has not been applied to the complainant notwithstanding that an adverse decision was earlier made affecting the complainant which involved an approach later embodied in the Circular. Accordingly the complaint is clearly irreceivable and should be dismissed summarily under Article 7 of the Rules of the Tribunal."
Reference(s)
ILOAT Judgment(s): 1852, 2822, 2953
Keywords:
cause of action; general decision;
Judgment 3462
119th Session, 2015
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complaint, clearly irreceivable, is summarily dismissed.
Judgment keywords
Keywords:
cause of action; complaint dismissed; general decision; locus standi; outsourcing; summary procedure;
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