Judgment No. 4809
Decision
1. The decision of the Director-General of the ILO of 3 September 2008 is set aside insofar as it refuses to redefine the complainant’s external collaboration contract for the period from 6 November to 15 December 2006.
2. The ILO shall pay the complainant damages in the amount of 5,000 Swiss francs under all heads.
3. The Organization shall also pay him costs in the amount of 500 Swiss francs.
4. All other claims are dismissed.
Summary
The complainant seeks a contractual redefinition of his employment relationship and the setting aside of the decision not to renew his last contract.
Judgment keywords
Keywords
complaint allowed; redefinition of contract
Consideration 2
Extract:
The Organization submits that the Tribunal does not have jurisdiction to hear the complaint because the complainant, who held external collaboration contracts for most of the period in question, was not an official of the Office.
This challenge to the Tribunal’s jurisdiction – which, in the form in which it is presented, relates to the substance of the dispute – is irrelevant in this case.
It is true that, under the Tribunal’s case law, where an external collaboration contract confers jurisdiction for settling disputes concerning its performance on another judicial authority or – as is more often the case – on an arbitral body, the Tribunal cannot hear such a dispute, even where it concerns precisely the redefinition of the contract in question as a contract appointing an official (see, in particular, Judgments 4652, considerations 16 to 20 and 22, and 2888, considerations 5 and 6).
However, plainly this case law does not apply when that contract grants jurisdiction to the Tribunal to hear disputes relating to its performance, as permitted under Article II, paragraph 4, of the Tribunal’s Statute (see Judgments 4652, consideration 21, and 2888, consideration 7). In this case, the external collaboration contracts concluded by the ILO and the complainant all included a provision in paragraph 12 specifically conferring jurisdiction on the Tribunal to hear “[a]ny dispute arising out of [their] application or interpretation”. The Tribunal therefore has jurisdiction to rule on any dispute relating to their possible redefinition.
Reference(s)
ILOAT Judgment(s): 2888, 4652
Keywords
external collaborator; competence; arbitration; ratione personae; non official
Consideration 3
Extract:
It is true that the contracts in question did not themselves set any time limit for submitting an appeal in their connection. However, under the Tribunal’s case law, since the complainant intended to obtain recognition as an official, he ought to have lodged his grievance within the time limit applicable to any ILO official under Article 13.2(1) of the Staff Regulations, that is within six months of the treatment complained of (see Judgments 2888, consideration 8, 2838, considerations 4 to 6, and 2708, considerations 6 to 8). Admittedly, it would in practice have been awkward for the complainant to dispute the lawfulness of the initial contracts in question because he might have jeopardised further employment by the Organization and it would have been difficult for him to prove at the outset that, as he submits, he was engaged in ongoing duties. But these considerations do not hold good for subsequent contracts, and they ought to have been challenged at the latest within six months of their respective expiry dates. As has been said, the complainant – who had never requested that his employment relationship be redefined before it was ended – did not submit his grievance until 14 February 2007. The evidence shows that, at that date, the only contracts that could still be challenged within the prescribed time limit were an external collaboration contract for DIALOGUE between 6 November and 15 December 2006 and the last contract of this type, granted to the complainant at the end of the preceding contract for employment in the same department and which ended on 8 January 2007.
Pursuant to Article VII, paragraph 1, of the Statute of the Tribunal, the fact that the complainant’s grievance was out of time insofar as it sought the redefinition of all the other contracts renders his complaint irreceivable to the same extent for failure to exhaust the applicable internal means of redress, since they cannot be deemed to have been exhausted unless recourse has been had to them in compliance with the formal requirements and within the prescribed time limit (see, for example, Judgments 4655, consideration 20, 4159, consideration 11, and 2888, consideration 9).
Reference(s)
ILOAT Judgment(s): 2708, 2838, 2888, 4159, 4655
Keywords
receivability of the complaint; late appeal; internal remedies not exhausted
Consideration 4
Extract:
The wording of th[e] letter [in question] makes it plain that it was not intended to convey a decision taken by the Executive Director but by the Director-General himself, in a procedure commonly used in such cases at the ILO and, mutatis mutandis, in many other international organisations. The matter of whether the power to sign this letter had been granted is therefore irrelevant and the plea must be dismissed in accordance with the Tribunal’s well-established case law in this matter (see, for example, Judgments 4291, considerations 17 and 18, 3352, consideration 7, and 2836, consideration 7).
Reference(s)
ILOAT Judgment(s): 2836, 3352, 4291
Keywords
decision-maker; final decision; notification; delegation of power
Consideration 8
Extract:
It follows from the[se] considerations that the impugned decision must be set aside in so far as it refused to redefine the external collaboration contract for the period from 6 November to 15 December 2006, bearing in mind that, although the Organization attempts to oppose that setting aside by referring to the inviolability of the terms of a contract, that objection cannot stand in the case of misuse of the rules governing the contractual relationship between an organisation and its staff members (see, for example, Judgments 3225, consideration 7, 3090, consideration 7, 2838, consideration 8, and 2708, consideration 10).
Reference(s)
ILOAT Judgment(s): 2708, 2838, 3090, 3225
Keywords
conversion of contract; abuse of power
Consideration 10
Extract:
It is true that, under the Tribunal’s case law, the decision not to renew an official’s contract of employment must, even if it is a matter for the competent authority’s discretion, be based on valid reasons that must be communicated to the staff member concerned (see, for example, Judgments 3914, considerations 14, 15 and 18, 2708, consideration 12, and 1273, consideration 8).
However, this case law does not apply to external collaboration contracts, which are not contracts appointing officials. It is plain from the preceding consideration that the contract to which the non-renewal decision applied – which was, by definition, the last contract previously concluded – should be regarded, unlike the earlier contracts, as an external collaboration contract.
Reference(s)
ILOAT Judgment(s): 1273, 2708, 3914
Keywords
external collaborator; non-renewal of contract; non official
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