Judgment No. 339
Decision
The Tribunal quashes the Director-General's decision of 14 December 1976 and orders the Organization to pay to the complainant:
1. an indemnity of 11,632.50 United States dollars together with interest at 8 per cent per annum running from 1 July 1976, and
2. 1,000 United States dollars for legal costs.
Consideration 12
Extract:
The parties are bound by a contract for conditional appointment. One condition relates to "government and other internal clearances". The dossier contains no explanation of what this phrase means. "[S]ince it occurs in a document composed and proffered by the organization it is for the organization in the first place to attribute a meaning to it. Without this elucidation the Tribunal cannot hold that the condition has not been fulfilled [...]."
Keywords
member state; contract; offer; medical examination; judicial review; acceptance; condition
Consideration 11
Extract:
The language and form of the document and the circumstances in which it was executed support the view that the organization intended to make a commitment, albeit one that was subject to conditions. "Owing to its failure to distinguish between a contract to appoint and the fact of appointment itself, the organization erroneously believed that it would not be legally bound until the appointment was actually made."
Keywords
formal requirements; organisation's duties; contract; appointment; intention of parties; condition; consequence
Consideration 1
Extract:
"[F]or jurisdiction to be conferred on the Tribunal the complainant must establish that there was a binding contract of appointment; but if, as here, there is a dispute about that, it is a dispute which under paragraph 7 [of Article Il of its Statute] the Tribunal is competent to determine."
Reference(s)
ILOAT reference: ARTICLE II, PARAGRAPH 7, OF THE STATUTE
Keywords
competence of tribunal; evidence; contract; condition
Consideration 5
Extract:
The complainant addressed himself to the Director of Personnel who informed him that no procedure existed for an appeal by a person not belonging to the staff of the organization. The complainant subsequently brought the matter to the attention of the Director-General who said that the organization considered his appeal to be irreceivable because he was not a staff member. The complainant concluded that this was a final decision and that he had exhausted his means of appeal. He informed the organization that he intended to file a complaint with the Tribunal. The organization did not reply. The organization thus led the complainant to believe that an appeal would be pointless and the organization cannot now be heard to object that it was not made.
Keywords
locus standi; status of complainant; receivability of the complaint; direct appeal to tribunal; internal remedies exhausted; good faith; contract; offer
Consideration 15
Extract:
The withdrawal of finance by another body might be shown "as having such a crippling effect on the organization's ability to continue with the contract as to constitute reasonable grounds for its termination. But there is no material in the dossier which would enable the Tribunal to reach any conclusion about the effect of the withdrawal [...]. There is nothing [...] to connect the disapprovals with any financial situation." And there are further reasons for supposing that there may have been other factors to consider.
Keywords
grounds; lack of evidence; contract; offer; offer withdrawn; budgetary reasons; judicial review
Consideration 4
Extract:
The dispute turns on whether or not a contract was concluded. "The question whether the present case is within the Staff Regulation depends on whether a person whom the organization had agreed to appoint formally as a staff member is to be deemed to be de facto a staff member within the meaning of the Regulation."
Keywords
status of complainant; organisation; staff regulations and rules; enforcement; contract; offer; offer withdrawn
Consideration 4
Extract:
The jurisdiction of an appeals committee need not necessarily be the same as the jurisdiction of the Tribunal. "It would be neither irrational nor inconvenient if the question whether a contract of appointment had or had not been concluded was left outside the jurisdiction of a committee designed to deal with staff grievances rather than with questions of law."
Keywords
internal appeals body; competence; competence of tribunal; evidence; contract; offer
Considerations 11-12
Extract:
There is nothing to suggest that the organization did not at the time of the contract intend to commit itself. The letter announcing the cancellation did not suggest that there had never been any commitment. The reason given was the financial situation of another body which was said to constitute a case of force majeure [...]. This point has not been pursued. the document constituted a contract for a conditional appointment.
Keywords
grounds; organisation; force majeure; contract; offer; intention of parties; offer withdrawn; budgetary reasons; condition
Considerations 13-14
Extract:
There is a clause in the contract which provides that the employment may be terminated by either party upon written notice of two weeks. "The organization contends that if the appointment had been made, it could and would have terminated it by giving a fortnight's notice and accordingly that the indemnity payable to the complainant should be calculated on the loss of two weeks' employment. In the opinion of the Tribunal good faith would forbid the use of a clause of this type simply for the purpose of destroying the contract. There must be reasonable grounds to justify a premature termination."
Keywords
organisation; good faith; enforcement; provision; contract; offer withdrawn; termination of employment; notice
Consideration 2
Extract:
"The Statute [of the Tribunal] is the document which is known to define the jurisdiction [of the Tribunal]; the resolution [whereby the Conference of the organization accepted the jurisdiction of the Tribunal] is an instruction to the Director-General to arrange for the organization to accept that jurisdiction. If the resolution does not use exactly the same words as the Statute, nothing is to be inferred from that."
Keywords
competence of tribunal; declaration of recognition; iloat statute
Consideration 1
Extract:
In the opinion of the Tribunal it is the words "terms of appointment" which are crucial in Article II, paragraph 5, of the Statute of the Tribunal. "The appointment is not imposed upon the official on such terms as the organization alone thinks fit; it is the result of a contract which contains the terms agreed between the organization and the person to be appointed."
Reference(s)
ILOAT reference: ARTICLE II, PARAGRAPH 5, OF THE STATUTE
Keywords
iloat statute; terms of appointment; contract
| 
