Judgment No. 3483
Decision
1. The impugned decision dated 26 October 2012 is set aside.
2. The FAO shall pay the complainant the amount that she would normally have recovered as daily subsistence allowance during the eleven-month subsistence of her employment contract, less the 33,000 dollars already paid to her, plus 5 per cent interest calculated from 6 March 2009.
3. The FAO shall pay the complainant 6,000 dollars in costs.
4. All other claims are dismissed.
Summary
The complainant challenges the FAO’s decision not to pay her a daily subsistence allowance during her appointment in Rome.
Judgment keywords
Keywords
complaint allowed; decision quashed; terms of appointment; daily subsistence allowance
Consideration 1
Extract:
"The Tribunal has often stated that the function of a court of law is to interpret and apply a contract in accordance with the real intention of the parties as expressed in the language of the contract. It is basic principle that when a term of employment is clear and unambiguous the parties are bound by that term unless there is evidence that warrants looking behind the mere wording of the text to ascertain the parties’ real intention (see, for example, Judgment 1385, under 12). The Tribunal has also stated that where any term of employment is expressed in writing, the intention of the parties is to be ascertained from the documents that are produced. A contract or term therein may be vitiated or varied if there is overwhelming evidence that the parties had a contrary intention to that which is expressed in the text (see, for example, Judgment 1634, under 21)."
Reference(s)
ILOAT Judgment(s): 1385, 1634
Keywords
interpretation; contract
Consideration 6
Extract:
"[A]n administrative decision creates rights for the staff member and is binding upon the organization as soon as it is communicated to her or him. In that event, the decision may only be reversed or revoked if it is unlawful and has not yet become final. […] [W]here there is a genuine clerical or administrative error in such a decision, the decision does not create any rights for the staff member and the organization may reverse or revoke the decision subsequently."
Keywords
clerical error
Consideration 9
Extract:
"[T]he trite and consistent principle [is] that a written contract or a provision therein may be revoked or amended for error or mistake where the minds of the parties meet in agreement that what is expressly provided does not reflect their real intention."
Keywords
contract
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