Judgment No. 4219
Decision
1. The ITER Organization shall pay the complainant 6,000 euros moral damages. 2. The ITER Organization shall pay the complainant 4,000 euros costs. 3. All other claims are dismissed.
Summary
The complainant, who had been seconded to the ITER Organization, challenges the decision to end his secondment and the failure to investigate his harassment allegations.
Judgment keywords
Keywords
complaint allowed; competence; secondment; harassment; ratione personae
Consideration 4
Extract:
The defendant organisation contends in its reply that the Tribunal is not competent to deal with this complaint and that it is irreceivable. It also requests the Tribunal to make a procedural ruling limiting the proceedings in the first instance to a consideration of these two contentions. It is unnecessary to make such a procedural ruling. Mostly, when a party challenges the competence of the Tribunal or argues that a complaint is irreceivable, the Tribunal will treat these issues as threshold issues which need to be addressed before, if it becomes appropriate, addressing the merits of the case if the challenge to competence or receivability fails.
Keywords
receivability of the complaint; competence of tribunal
Consideration 7
Extract:
In relation to the challenge to the impugned decision, insofar as the Director-General concluded the complainant had no right of appeal, the following comment can be made. There can be no doubt that there is no general right of appeal available to staff of international organisations deriving, at least impliedly, from their terms of appointment to challenge decisions with which they are aggrieved irrespective of the provisions of applicable staff rules or regulations. However, even if the staff rules or regulations do not provide for an appeal, they cannot preclude the initiation of proceedings in the Tribunal (see, for example, Judgment 2312, consideration 3).
Reference(s)
ILOAT Judgment(s): 2312
Keywords
competence; right of appeal
Consideration 9
Extract:
[T]he complainant relies on his right to come directly to the Tribunal. [T]hat right exists apart from a provision in the staff rules or regulations concerning the right of appeal.
Keywords
direct appeal to tribunal; right of appeal
Consideration 9
Extract:
The decision of the European Commission to make the recall is not justiciable before the Tribunal as it has not, as noted earlier, submitted to the Tribunal’s jurisdiction, even if it was possible.
Keywords
competence of tribunal; secondment; defendant organisation
Consideration 12
Extract:
The Tribunal now turns directly to the question of whether the complainant was an official for the purposes of the Tribunal’s Statute. In relation to seconded staff, it has been said by the Tribunal that “[a]s a general rule, the effect of secondment is to suspend the contractual relationship between the releasing agency and the employee, who retains the right to return to the releasing agency upon expiry of the secondment term without having to seek other employment. During secondment, [she or]he is subject to the staff regulations and rules of the receiving agency” (see Judgment 2184, consideration 4). Ultimately, of course, the status of a seconded employee has to be assessed having regard to the specific arrangements in place concerning the secondment. One case where a seconded employee was not viewed as an official or employee of the receiving organisation is Judgment 3247. Additionally, as the Tribunal observed in Judgment 2918, consideration 11, “[s]econdment is, in essence, a tripartite agreement which, ordinarily, involves an agreement between the person seconded and the receiving organisation, at least as to some matters”. In that case the applicability of the Staff Regulations depended on whether an individual had concluded an employment contract with the organisation and the Tribunal found the seconded staff had not. Additionally in that judgment reference was made to Judgment 703, which established that secondment does not necessarily preclude the person concerned from becoming a staff member of the organisation to which she or he is seconded.
Reference(s)
ILOAT Judgment(s): 703, 2184, 2918, 3247
Keywords
competence; secondment; ratione personae; official; staff member
Consideration 17
Extract:
[T]he Tribunal has recognised that former officials can seek redress in the Tribunal when, inter alia, the former official is seeking to enforce rights which had arisen during the currency of her or his employment with the international organisation concerned (see, for example, Judgments 3505, consideration 3, and 3915, consideration 3).
Reference(s)
ILOAT Judgment(s): 3505, 3915
Keywords
competence; former official; ratione personae; ratione materiae
Consideration 18
Extract:
While this complaint is receivable and one aspect of the complainant’s case is well founded, the question of relief is problematic. In relation to the alleged harassment, he seeks an order directed to the defendant organisation “to recognize that he has been a victim of harassment and compensate him for the damage he has suffered as a consequence of the harassment, in the amount of [euros] 50,000”. Even if it was appropriate, as a matter of principle, to make such an order, there is insufficient material before the Tribunal to undertake an assessment of whether harassment has occurred. Also, in the circumstances of this case, given that the complainant has left the ITER Organization, it would not be advisable to direct the ITER Organization to investigate his allegations (see Judgments 3639, consideration 9, or 3935, consideration 8). However, he is entitled to moral damages for the failure of the ITER Organization to do so[.]
Reference(s)
ILOAT Judgment(s): 3639, 3935
Keywords
moral injury; inquiry; harassment; investigation
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