Judgment No. 4652
Decision
The complaint is dismissed.
Summary
The complainant challenges the decision not to pay him compensation equal to the difference between his remuneration as a consultant and the value of the salary and benefits received by staff members performing similar functions.
Judgment keywords
Keywords
competence; ratione personae; non official; consultant; complaint dismissed
Considerations 8, 11-21
Extract:
The Tribunal is aware that in many States there is an ongoing debate as to whether the existence of an employment relationship can or should be recognised in certain situations where, although such a relationship is not expressly provided for in the contract, other factors support a conclusion that the person concerned is, in fact, an employee and must be treated as such.
[…]
The Tribunal’s jurisdiction is established and defined by its Statute. It is bound to exercise the jurisdiction so conferred. Centrally, it is to hear complaints of officials having regard to the terms of Article II. Pursuant to Article II, paragraph 5, of its Statute, “[t]he Tribunal shall [...] be competent to hear complaints alleging non-observance, in substance or in form, of the terms of appointment of officials”. The Tribunal’s jurisdiction does not therefore extend to complaints filed by individuals who do not have the status of an official in the defendant organisations (see Judgment 3049, consideration 4).
Although the determination of that status does not depend exclusively on the wording of the contract or the staff regulations and the Tribunal may need to rely on other documents (see, for example, Judgment 3359, consideration 13), in the present case each contract contains a very clear definition of the relationship between the parties.
In Clause G-19 it is clearly indicated that the contract “creates an independent contractor relationship” and that nothing contained in it “shall be construed as establishing or creating between the Fund and the Consultant a relationship of employer and employee [...]”. Although certain other clauses in these contracts are not incompatible with the existence of an employer-employee relationship, they cannot be construed as negating the clear indication in Clause G-19 as to the legal status of the complainant.
Whilst the complainant argues that offering the contracts to him as an “independent consultant” was an abuse of power, because they were offered in those terms for an ulterior purpose, namely, to disguise the true nature of the employer-employee relationship which was intended to be created, there is nothing in the file to suggest that the terms of the contracts did not reflect the parties’ true intentions.
There is no basis on which the complainant can claim that he should be retroactively assigned a different contractual status, given that he had freely signed both contracts (see, for example, Judgments 2734, consideration 1, 2415, consideration 4, and 2308, consideration 17).
Moreover, it is noteworthy that Clause G-21 provides specifically that any dispute not resolved amicably shall be finally settled by arbitration. The Tribunal has already had occasion to rule that it has no jurisdiction to hear a dispute relating to a contract concluded with an independent contractor or collaborator which contains such an arbitration clause (see Judgment 2888, consideration 5, and the case law cited therein).
In Judgment 2888, consideration 6, the Tribunal further explained that […]
These considerations apply, in the same way, to the present case.
The existence of an arbitration clause in some contracts has been treated by the Tribunal as evidencing an agreement to exclude the jurisdiction of the Tribunal (see Judgments 3705, consideration 4, 2688, consideration 5, 2017, consideration 2a, and 1938, consideration 4).
It is obvious that the inclusion of an arbitration clause in the contract of an official would be contrary to the Statute of the Tribunal and the basis on which organisations recognize the Tribunal’s jurisdiction. Indeed, if a person is or was an official of an organisation which has recognized the Tribunal’s jurisdiction, that person has a right to commence and maintain proceedings alleging non-observance of the terms of appointment or of the staff regulations and can do so notwithstanding the existence of an arbitration clause in a contract between that person and the organisation concerned.
The inclusion of an arbitration clause in the contract of a non-official is not unlawful in itself. In this case, as noted above, the arbitration clause specifically provides for arbitration by a single arbitrator in the Republic of Korea.
The Tribunal notes that there appears to be no time limit in the contract for the submission of the dispute to arbitration and the complainant may, if he so wishes, advance all his arguments before the arbitrator.
The Tribunal would be competent to hear disputes concerning the execution of a contract of a non-official where the contract itself provides for the Tribunal’s competence, as provided for by Article II, paragraph 4, of its Statute (see Judgments 967 and 803).
Reference(s)
ILOAT Judgment(s): 803, 967, 1938, 2017, 2308, 2415, 2688, 2734, 2888, 3049, 3359, 3705
Keywords
competence; arbitration; ratione personae; non official
|
