Judgment No. 3135
Decision
The complaint and the CTA's counterclaims are dismissed.
Judgment keywords
Keywords
non-renewal of contract; performance evaluation; complaint dismissed
Consideration 8
Extract:
The complainant has applied for hearings. In view of the abundant and very clear submissions and evidence produced by the parties, the Tribunal considers that it is fully informed about the case and does not therefore deem it necessary to grant this application.
Keywords
oral proceedings
Consideration 14
Extract:
It is to no avail that the complainant attempts to argue, in this connection, that she was not fully informed of the internal appeal procedures available to her under the Staff Regulations. Quite apart from the fact that she was manifestly aware of the possibility of lodging a “complaint”, because she did so, consistent precedent has it that the staff members of international organisations are deemed to know the provisions of the staff regulations applying to them (see, for example, Judgment 1700, under 28).
Reference(s)
ILOAT Judgment(s): 1700
Keywords
duty to be informed; ignorance of the rules; duty to know the rules
Consideration 17
Extract:
The Tribunal […] draws attention to the fact that, generally speaking, the terms of employment of staff members of international organisations may vary according to amendments of the existing staff regulations or staff rules and that such references to the original provisions as may be contained in their employment contracts do not prevent this.
Keywords
applicable law; amendment to the rules; terms of appointment
Consideration 19
Extract:
As the Tribunal has often stated, a provision is retroactive only if it effects some change in a person’s existing legal status, rights, liabilities or interests from a date prior to its proclamation, but not if it merely alters the effects of this status or of these rights, liabilities or interests in the future (see, inter alia, Judgments 2315, under 23, or 2986, under 14). In the present case, however, the new provision in question did not alter the compensation in lieu of notice already paid to the complainant, but only introduced a new rule on the subject, which was subsequently applied to her. It did not therefore alter any legal status, or infringe any right as from a date prior to its issuance and it thus produced effects only in the future.
Reference(s)
ILOAT Judgment(s): 2315, 2986
Keywords
retroactivity
Considerations 20 to 24
Extract:
[A] period of notice constitutes, by its very nature, a substantive and sensitive aspect of the terms of employment
However, according to the Tribunal’s case law as established inter alia in Judgment 61, clarified in Judgment 832 and confirmed in Judgment 986, the amendment to an official’s detriment of a provision governing his/her status constitutes a breach of an acquired right only if it adversely affects the balance of contractual obligations by altering fundamental terms of employment in consideration of which the official accepted an appointment, or which subsequently induced him/her to stay on. In order for there to be a breach of an acquired right, the amendment to the applicable text must therefore relate to a fundamental and essential term of employment within the meaning of Judgment 832 (in this connection, see also Judgments 2089, 2682, 2696 and 2986).
While one might be inclined to accept that the actual existence of a period of notice or even, possibly, the basic principles underpinning the manner in which it is determined, are indeed fundamental and essential, the Tribunal finds that this is not true of the number of months of service which may be taken into consideration when determining the length of this period or the amount of the compensation paid in lieu of notice, which constitutes no more than a method of calculating this benefit, especially as, in this case, the amendment of the term of employment in question, that is the setting of a nine-month maximum, is of only relative importance. It must, moreover, be pointed out that in what is in some respects the similar situation of amendments to the rules governing officials’ benefits, the Tribunal consistently holds that, while the outright abolition of an allowance could constitute a breach of an acquired right, this is not true of the actual amount of the allowance or the method of reckoning it (see, in particular, Judgments 666, under 5, 1886, under 9, paragraph 3, or 2972, under 8). The same principles, mutatis mutandis, must form the basis of the present judgment.
In fact, the application to the present case of the three criteria identified by the Tribunal in Judgment 832 as a means of determining whether a breach of acquired rights has occurred, namely the nature of the altered term of appointment, the reason for the change and the consequence of recognising or not recognising an acquired right, confirms that no breach of acquired rights is to be found here.
The nature of the altered term of employment stemmed from a clause of the complainant’s employment contract, which might normally be an indication that a right has been acquired. But here this clause only reflected the existing provisions of Article 35 of the 1992 Staff Regulations to which, as stated earlier, it expressly referred, with the result that it actually stemmed from these provisions themselves. Unlike individual decisions or the specific terms of an official’s contract, the provisions of staff regulations or staff rules rarely give rise to acquired rights.
Reference(s)
ILOAT Judgment(s): 666, 832, 986, 1886, 2089, 2682, 2696, 2972, 2986
Keywords
acquired right; notice
Consideration 25
Extract:
[T]he fact that the amendment of this term of employment was prompted by financial considerations does not in itself make it unlawful (see, for example, [...] Judgments 832, 2682 and 2986).
Reference(s)
ILOAT Judgment(s): 832, 2682, 2986
Keywords
amendment to the rules; financial considerations
Consideration 29
Extract:
The CTA has asked that the complainant should be ordered to pay its costs on the basis that “the complaint is unfounded”. Without ruling out, as a matter of principle, the possibility of making such an order against a complainant (see, inter alia, Judgments 1884, 1962, 2211 and 3043), the Tribunal will avail itself of that possibility only in exceptional circumstances. Indeed, it is essential that the Tribunal should be open and accessible to international civil servants without the dissuasive or chilling effect of possible adverse awards of that kind. In the instant case, although the complaint must be dismissed, it should not be regarded as vexatious. The Centre’s counterclaims will therefore be dismissed.
Reference(s)
ILOAT Judgment(s): 1884, 1962, 2211, 3043
Keywords
vexatious complaint; costs; counterclaim
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