Judgment No. 4316
Decision
The complaints and the application to intervene are dismissed.
Summary
The complainants challenge the introduction of fixed “bridging days” to balance the number of public holidays at the different places of employment.
Judgment keywords
Keywords
public holiday; discrimination; complaint dismissed
Consideration 9
Extract:
As the complaints challenge the same normative decision, are based on similar grounds, and contain similar requests for redress, the Tribunal finds it convenient to join them and render one judgment.
Keywords
joinder
Consideration 9
Extract:
The Tribunal finds the written submissions to be sufficient to reach a reasoned decision and therefore there is no need for oral hearings.
Keywords
oral proceedings
Consideration 15
Extract:
Regarding the alleged indirect discrimination against women, who are more likely to work part-time than men, the IAC minority took into consideration the judgment rendered by the European Court of Justice (ECJ) on 6 December 2007 in case C-300/06, to contend that the change introduced by Circular No. 309 had resulted in indirect discrimination. Regardless of other considerations, the case examined by the ECJ is different from the present case. According to ECJ case law, the principle of equal pay also excludes the application of provisions which maintain different treatment between men and women at work as a result of criteria not based on sex where those differences of treatment are not attributable to objective factors wholly unrelated to sex discrimination. In this case, the alleged indirect discrimination against women is not established, as the difference of treatment had been determined by objective factors, involving financial gains and administrative benefits, wholly unrelated to any kind of discrimination.
Keywords
european court of justice (ecj); part-time employment; discrimination; equal pay for equal work; discrimination against women
Consideration 17
Extract:
A decision taken in the exercise of this broad discretion may only be quashed for unlawfulness for breach of general principles of law, of a rule of form or procedure; or if it is unquestionably unreasonable. “It must be recalled that the Tribunal is not competent to rule on the merits of [the Organisation]’s choices in respect of its staff management, for they form part of the general employment policy that an organisation is free to pursue in accordance with its general interests” (see Judgments 3827, under 7, 3225, under 6, and 2061, under 5).
Reference(s)
ILOAT Judgment(s): 2061, 3225, 3827
Keywords
judicial review; discretion
Consideration 18
Extract:
The fact that some staff were unhappy with the choice does not mean that the change was unlawful and that the previous rules could not be changed. The Tribunal recognizes that it is not always possible to cater to the needs of each individual employee, as the product or result of the work being done is often justifiably considered a higher priority over the individual’s personal interests (see Judgment 2587, under 10). The basic idea underlying the complaints, that the only possible choice was the most favorable for the staff, is wrong as it denies the President’s discretion.
Reference(s)
ILOAT Judgment(s): 2587
Keywords
discretion
Consideration 20
Extract:
[T]he claims for moral damages will be rejected as the complainants have not convincingly articulated the adverse effects of the delay.
Keywords
moral injury; delay in internal procedure
Consideration 21
Extract:
Regarding [the] application to intervene, the Tribunal notes that, in order to establish that his situation in fact and in law is similar to that of [the complainant], [the intervener] relies on the fact that, “like the complainant, [he is] personally adversely affected by the [...] ‘decision’ referred to in Communiqué 12 [...] and in particular the purported new Rule 4(b) as introduced into Circular 22 [...]”, and his internal appeals against these decisions were dealt with by an unlawfully constituted appeals committee. Given that none of these matters is raised in [the] complaint, [the] application to intervene is irreceivable.
Keywords
intervention
Consideration 13
Extract:
The reasoning in Judgment 699 was that the contested circular could not contradict Article 55 of the Service Regulations according to the hierarchical principle that a lower source of law (Circular No. 121) cannot prevail over a higher source (Article 55 of the Service Regulations).
Keywords
precedence of rules
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