Judgment No. 4009
Decision
1. The Secretary General’s decision of 16 August 2016 and those of 4 and 23 December 2015 are set aside.
2. The Energy Charter Conference shall pay the complainant 60,000 euros in compensation under all heads.
3. The Energy Charter Conference shall also pay him costs in the amount of 5,000 euros.
4. All other claims are dismissed.
Summary
The complainant challenges the decision not to extend his fixed-term contract following the abolition of his post, but to give him a Project Staff contract.
Judgment keywords
Keywords
complaint allowed; decision quashed; fixed-term; abolition of post; non-renewal of contract
Consideration 2
Extract:
The adoption of an establishment table is a general decision which, according to the case law, cannot be impugned if it requires individual implementing decisions, in which case only the latter may be impugned (see Judgments 3736, under 3, and 3628, under 4, and the case law cited therein). However, the decision not to extend the complainant’s fixed-term contract but to offer him a Project Staff contract is an individual decision implementing the amendment of the establishment table and, in support of his claims directed against that decision, the complainant is entitled to challenge the lawfulness of the said amendment, which formed the basis of the decision in question.
Reference(s)
ILOAT Judgment(s): 3628, 3736
Keywords
general decision; individual decision
Considerations 4-5
Extract:
A firm line of precedent has it that a decision concerning the restructuring of an international organisation’s services which leads to the abolition of a post is subject to only limited review by the Tribunal. The latter must therefore confine itself to ascertaining whether the decision was taken in accordance with the rules on competence, form or procedure, whether it involves a mistake of fact or of law, whether it constituted abuse of authority, whether it failed to take account of material facts, or whether it draws clearly mistaken conclusions from the evidence (see Judgment 3582, under 6).
Since a breach of rules concerning consultation of a staff representative body constitutes a procedural flaw, this plea lies within the scope of review defined above.
Reference(s)
ILOAT Judgment(s): 3582
Keywords
reorganisation; consultation; judicial review
Considerations 8-13
Extract:
The Tribunal recalls that, in keeping with the principle tu patere legem quam ipse fecisti, when a text provides for the consultation of a body representing the staff before the adoption of a decision, the competent authority must follow that procedure, otherwise its decision will be unlawful (see, for example, Judgments 3883, under 20, 3671, under 4, and 1488, under 10). [...]
In accordance with the principle tu patere legem quam ipse fecisti, the Secretary General had to abide by Staff Rule 25.1 and consult Senior Management officers about the non-extension of the complainant’s contract and the proposal to give him a Project Staff contract. Furthermore, their conclusions should have been recorded in writing, in accordance with that provision.
Reference(s)
ILOAT Judgment(s): 1488, 3671, 3883
Keywords
advisory body; patere legem
Considerations 10 &14
Extract:
As the defendant organisation notes, the complainant’s “request” to have his fixed-term contract redefined was not submitted to the Advisory Board. It is true that in his internal appeal the complainant asked only to have his fixed-term contract extended for one year. The Tribunal’s case law clearly establishes that a complainant’s claims must not exceed in scope the claims submitted during the internal appeal process. However, a complainant is not precluded from advancing new pleas, as the present complainant does, before the Tribunal even if these pleas were not placed before the internal appeal body (see Judgments 3686, under 22, and 2571, under 5). [...]
As stated in consideration 10, [..] the Tribunal considers that a complainant may advance a new plea before the Tribunal, even if it was not placed before the internal appeal body.
Reference(s)
ILOAT Judgment(s): 2571, 3686
Keywords
new claim; receivability of the complaint; internal appeal; new plea
Consideration 11
Extract:
The wording of Staff Regulation 10 and Staff Rule 10.1 is clear and must be construed according to the primary rule that unambiguous words must be given their obvious and ordinary meaning (see Judgments 3701, under 4, 3213, under 6, and 1222, under 4).
Reference(s)
ILOAT Judgment(s): 1222, 3213, 3701
Keywords
interpretation; interpretation of rules
Consideration 11
Extract:
There is plainly nothing in these provisions which would entitle the complainant to have his fixed-term contract redefined. Nor is there anything in the case law establishing such a right.
Keywords
conversion of contract
Consideration 15
Extract:
The complainant [...] submits that his employment relationship after 1 July 2016 could not be termed a Project Staff contract because his duties, which remained the same, could not be subsumed under the notion of a project, nor could they be viewed as short-term.
The Tribunal notes that according to the terms of the letter of 4 December 2015, the Secretary General offered the complainant a six-month Project Staff contract, with “the same job description” and at the same grade and step. In other words, the complainant continued to perform the same duties with the same remuneration. The only differences between the contract under which he was employed and that which was offered to him, were their name and duration. As the complainant had been employed since 1998 as Head of Administration and Finance under a fixed-term contract, the Secretary General could not offer him a temporary contract to continue performing exactly the same work as he was performing under a fixed-term contract without contravening the spirit of the applicable texts (see Judgment 2708, under 10).
Reference(s)
ILOAT Judgment(s): 2708
Keywords
duration of appointment; fixed-term; continuance of operations; renewal of contrat
Consideration 15
Extract:
[A]s the Tribunal has consistently held, although job abolitions may arise from a restructuring, they must be justified by real needs and not be immediately followed by the creation of equivalent posts (see Judgments 3422, under 2, and 2156, under 8).
Reference(s)
ILOAT Judgment(s): 2156, 3422
Keywords
abolition of post
Consideration 16
Extract:
[I]n the circumstances of this case, there are no grounds for ordering the complainant’s reinstatement, given the amount of time that has passed, and bearing in mind the fact that, as already stated, the complainant did not hold a contract of indefinite duration and that the organisation is facing financial difficulties.
Keywords
reinstatement
Consideration 17
Extract:
When assessing these damages, account will be taken of the fact that, although he had been in the Secretariat’s service since 1 November 1995, he had held a fixed-term contract and thus did not have any right to have it extended until he reached retirement age. Account will also be taken of the fact that, after his fixed-term contract was not extended, he continued for a period of six months to earn the same amount of salary as he had previously received.
Keywords
damages
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