Competence of Tribunal (102, 103, 105, 694, 699, 700, 701, 844, 702, 703, 727, 830, 861, 878, 944, 946, 948,-666)
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Keywords: Competence of Tribunal
Total judgments found: 473
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Judgment 4912
138th Session, 2024
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who worked for the Global Fund as a consultant, requests the Tribunal, inter alia, to set aside the “Global Fund’s decision to not renew his fixed-term contract” and to instruct the organisation to reinstate him in his job.
Consideration 3
Extract:
The Tribunal notes that it is clear enough from the complainant’s pleas and claims that he is in fact challenging the non-renewal of his contract rather than the decision of [the Chair and Vice-Chair of the Ethics and Governance Committee rejecting allegations of impropriety, retaliation and conflict of interest]. However, at the material time, there was no contractual relationship between him and the Global Fund. Therefore, there is, in any event, no basis on which he can be considered as an “official” of the defendant organisation for the purposes of Article II, paragraph 5, of the Tribunal’s Statute, according to which “[t]he Tribunal shall [...] be competent to hear complaints alleging non-observance, in substance or in form, of the terms of appointment of officials”.
Had there been an agreement between the complainant and the Global Fund for the provision of his services as a consultant, the organisation could, in theory, have stipulated that the Tribunal was competent to hear disputes arising out of that agreement (see, for example, Judgment 4652, consideration 21), but that is not the case here.
Reference(s)
ILOAT Judgment(s): 4652
Keywords:
competence of tribunal; non official; ratione personae;
Judgment keywords
Keywords:
competence of tribunal; non official; summary procedure;
Judgment 4895
138th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: Le requérant conteste la date de sa promotion avec effet rétroactif et demande à être promu à une date antérieure.
Consideration 2
Extract:
Le Tribunal relève d’abord que, ainsi que le fait valoir l’OEB, il n’est pas compétent pour ordonner à une organisation internationale de promouvoir un fonctionnaire (voir les jugements 4391, au considérant 12, et 4040, au considérant 2).
Reference(s)
ILOAT Judgment(s): 4040, 4391
Keywords:
competence of tribunal; order; promotion;
Judgment keywords
Keywords:
applicable law; competence of tribunal; complaint dismissed; discretion; internal appeal; internal appeals body; judicial review; oral proceedings; order; promotion; retroactivity; right to be heard; work appraisal;
Judgment 4890
138th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for 2004-2005.
Consideration 4
Extract:
It is not the role of the Tribunal to provide explanations and advice about what to do to the parties (see, for example, Judgment 3989, consideration 5). The Tribunal simply does not issue declarations or orders of that nature.
Reference(s)
ILOAT Judgment(s): 3989
Keywords:
competence of tribunal;
Judgment 4882
138th Session, 2024
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: Le requérant conteste le refus de lui octroyer des contreparties, sous forme de repos ou sous forme financière, pour le temps d’habillage et de déshabillage nécessité par le port obligatoire d’un uniforme de service.
Consideration 8
Extract:
[I]l s’agit là de considérations d’opportunité, et non de droit, sur lesquelles le Tribunal ne saurait donc en tout état de cause se fonder pour trancher le présent litige, dès lors que, comme il l’a maintes fois rappelé dans sa jurisprudence, il est tenu de se prononcer essentiellement en droit (voir, par exemple, les jugements 4454, au considérant 7, 3732, au considérant 2, ou 3424, au considérant 11 a)).
Reference(s)
ILOAT Judgment(s): 3424, 3732, 4454
Keywords:
competence of tribunal;
Judgment 4866
138th Session, 2024
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to select her for the post of Senior Adviser, Human Rights and Law, following a competitive recruitment process.
Consideration 3
Extract:
As it is not within the Tribunal’s competence to order an international organisation to make an appointment (see, for example, Judgments 4100, consideration 5, and 2299, consideration 7), the complainant’s request to the Tribunal to appoint her directly to the post with full retroactive effect is rejected.
Reference(s)
ILOAT Judgment(s): 2299, 4100
Keywords:
appointment; competence of tribunal; order; relief claimed;
Judgment 4865
138th Session, 2024
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to select her for the post of Senior Advisor, Gender Equality, following a competitive recruitment process.
Consideration 2
Extract:
As it is not within the Tribunal’s competence to order an international organisation to make an appointment (see, for example, Judgments 4100, consideration 5, and 2299, consideration 7), the complainant’s request to the Tribunal to appoint her directly to the post with full retroactive effect is rejected.
Reference(s)
ILOAT Judgment(s): 2299, 4100
Keywords:
appointment; competence of tribunal; order; relief claimed;
Judgment 4857
138th Session, 2024
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: Le requérant soutient que l’Organisation serait responsable de fautes lourdes ayant porté atteinte à ses droits et estime notamment avoir été victime de harcèlement.
Judgment keywords
Keywords:
competence of tribunal; complaint dismissed; consultant; non official;
Judgment 4832
138th Session, 2024
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to impose on her the disciplinary sanction of demotion by two grades.
Consideration 2
Extract:
The complainant misunderstands and misconceives the role of the Tribunal in this regard. It is not for the Tribunal to issue orders of the nature sought against individuals who are not parties to the pending dispute.
Keywords:
competence of tribunal; injunction;
Judgment 4818
138th Session, 2024
Green Climate Fund
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision denying her and her dependents an individual medical insurance plan following her separation from service.
Consideration 11
Extract:
The complainant’s claim for an order to convert her GMIP into an IMIP is irreceivable, as the Tribunal’s case law clearly states that it lacks the competence to issue orders of this kind against international organisations (see, for example, Judgments 4804, consideration 2, 4065, consideration 9, 4039, consideration 17, and 2058, consideration 13). Her alternative claim for enrolment in the GMIP under terms provided to retirees also exceeds the Tribunal’s competence.
Reference(s)
ILOAT Judgment(s): 2058, 4039, 4065, 4804
Keywords:
competence of tribunal; injunction;
Judgment 4817
138th Session, 2024
World Trade Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns a decision ordering a new investigation into her alleged misconduct and suspending the disciplinary measures pending the new investigation and a new decision in the matter. She contests this decision to the extent it maintained the finding that she committed misconduct.
Consideration 9
Extract:
The complainant […] requests that the Tribunal order that the new disciplinary measure to be imposed, if any, be limited to a lesser one than that which the Director-General imposed in his original decision of 8 May 2018, pursuant to the principle of double jeopardy. The Tribunal does not have the power to make orders of this kind, nor can it limit in such a way the discretion of the Director-General to determine the appropriate disciplinary measures, if any, to be imposed, in the event that misconduct is established.
Keywords:
competence of tribunal; disciplinary measure; discretion; executive head; order; proportionality;
Consideration 10
Extract:
The complainant further requests that the Tribunal:
(i) “Order that the Director-General be recused from taking any adverse decision against [her] upon receipt of the new investigation findings”; and
(ii) “Order that the investigator submit her report to the Chairs of the General Council and of the Committee on Budget Finance and Administration as would be the case if the Director-General, a Deputy Director-General or a member of the Office of the Director-General were being investigated”.
These claims amount to requests for orders that the Tribunal has no competence to make and are, thus, irreceivable.
Keywords:
competence of tribunal; order;
Judgment 4804
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to reject his appeal seeking, in the main, moral damages for breach of confidentiality and defamation.
Consideration 2
Extract:
By one of his claims, the complainant asks the Tribunal to order that the EPO publish, in the EPO Gazette and/or on the intranet, the President’s […] decision on internal appeal RI/31/08 […], accompanied by a summary of the facts approved by himself. However, the Tribunal is not competent to make orders of this kind against international organisations (see Judgments 4065, consideration 9, 4039, consideration 17, and 2058, consideration 13).
Reference(s)
ILOAT Judgment(s): 2058, 4039, 4065
Keywords:
competence of tribunal; injunction; publication;
Judgment 4803
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests amendments made to the procedure for adjusting remuneration as reflected in his payslips.
Consideration 3
Extract:
[H]aving regard to the Appeals Committee’s findings, it is not inevitable, certain or even likely there will be future injury to the complainant. It remains the position generally that an abstract change of methodology of salary calculation or the calculation of other emoluments is challengeable when it is implemented or, exceptionally, when future injury is certain or likely. Thus, in Judgment 4075, recently reiterated in Judgments 4381, consideration 11, and 4380, consideration 8, for instance, the Tribunal concluded that the complaint was irreceivable as beyond the scope of the Tribunal’s competence.
Reference(s)
ILOAT Judgment(s): 4380, 4381
Keywords:
competence of tribunal; injury; salary;
Judgment keywords
Keywords:
competence of tribunal; complaint dismissed; payslip; salary;
Judgment 4797
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the modifications made to the procedure for examining patent applications and contest the validity of the internal appeal proceedings.
Consideration 10
Extract:
Cases arise in the Tribunal where the defendant organisation has failed to consult a person or a body, which should have been consulted under the relevant rules, and the Tribunal may make orders which require that consultation take place and the Tribunal may also set aside the decision made without consultation (see, for example, Judgment 4230). But setting aside the decision is not an inevitable outcome following a conclusion that consultation should have, but did not, take place.
Reference(s)
ILOAT Judgment(s): 4230
Keywords:
compensation; competence of tribunal; consultation; iloat statute;
Consideration 11
Extract:
In the present case, the failure to consult the GAC occurred over a decade ago. Indeed, as noted earlier, the GAC was abolished in 2014, almost a decade ago. It cannot now be consulted. There is a suggestion in the pleas of both the complainants and the EPO that the Notice is no longer in force. If so, this would be relevant and militate strongly against granting relief based on the failure to consult. But even if it is in force, it is not apparent to the Tribunal that the Notice’s continued implementation would cause any real prejudice or injury to the complainants or the staff of the Office more generally. In these circumstances, it is clearly not advisable to rescind the decision adopting and promulgating the Notice notwithstanding the failure to consult the GAC. However, while Article VIII of the Tribunal’s Statute contemplates the awarding of compensation there should be none in the present case. That is because a staff representative, bringing proceedings in that capacity, is not entitled to an award of moral damages (see Judgment 4575, consideration 9).
Reference(s)
ILOAT Judgment(s): 4575
Keywords:
compensation; competence of tribunal; consultation; iloat statute;
Judgment 4764
137th Session, 2024
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to dismiss her for misconduct.
Consideration 13
Extract:
In relation to the question of whether conduct founding a disciplinary measure has been proved beyond reasonable doubt and what evidence the Tribunal considers, it has said its role is a limited one, as described in Judgment 4362, consideration 7:
“The role of the Tribunal in a case such as the present is not to assess the evidence itself and determine whether the charge of misconduct has been established beyond reasonable doubt but rather to assess whether there was evidence available to the relevant decision-maker to reach that conclusion [...]”
Plainly enough that role does not require, indeed contemplate, further evidence to be furnished in the proceedings before the Tribunal. The touchstone for error in this regard concerns the evaluation of the evidence by the relevant decision-maker, namely the evidence before him or her.
Reference(s)
ILOAT Judgment(s): 4362
Keywords:
competence of tribunal; disciplinary measure; evidence; standard of proof;
Consideration 2
Extract:
One matter arising from the complainant’s pleas […] concerns the decision to place her “on administrative leave” in March 2018 which she challenges in her complaint. The legality of the suspension decision was not challenged at the time. Any grievance about that decision should have been raised then (see, for example, Judgment 4461, consideration 5). The [Global Board of Appeal] concluded, correctly, that the claims in the internal appeal, insofar as they related to the suspension decision, were irreceivable as time-barred. Accordingly, insofar as the legality of the suspension decision is challenged in these proceedings, the challenge is irreceivable because the complainant has not exhausted internal means of redress, a matter the Tribunal can consider ex officio (see, for example, Judgment 4597, consideration 8).
Reference(s)
ILOAT Judgment(s): 4461, 4597
Keywords:
competence of tribunal; failure to exhaust internal remedies; receivability of the complaint;
Judgment keywords
Keywords:
competence of tribunal; complaint dismissed; disciplinary measure; misconduct;
Judgment 4762
137th Session, 2024
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to dismiss him for misconduct.
Consideration 8
Extract:
It is well settled in the Tribunal’s case law that the executive head of an international organisation, while at liberty to disagree with, and reject, recommendations made by an internal appeal body, must explain why and the basis for the disagreement and rejection (see, for example, Judgment 4598, consideration 12). The Executive Director has not done so in the present case and her decision should be quashed and the matter remitted to the WHO/UNAIDS for a fresh decision to be taken.
Reference(s)
ILOAT Judgment(s): 4598
Keywords:
competence of tribunal; motivation of final decision;
Judgment 4739
137th Session, 2024
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the Global Fund’s decision to close his harassment complaint and not to provide him with a copy of the investigation report.
Consideration 5
Extract:
An order of […] measures [to mitigate the consequences of the complainant’s alleged harassment], including to permanently assign the complainant to another team, is beyond the Tribunal’s competence (see Judgment 4096, consideration 12).
Reference(s)
ILOAT Judgment(s): 4096
Keywords:
competence of tribunal; injunction;
Judgment 4737
137th Session, 2024
Energy Charter Conference
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who was the Secretary-General of the Energy Charter Secretariat, challenges the decision not to launch the procedure for his reappointment as Secretary-General.
Consideration 4
Extract:
A clear indicator of the status of the Secretary-General as an official, is that he or she is part of the Secretariat performing duties described in [Article 35(1) of the Energy Charter Treaty] (and elsewhere in the Treaty), namely providing the Charter Conference with all necessary assistance for the performance of its duties and entering “administrative and contractual arrangements”.
The organisation relies on other normative legal documents to argue the complainant is not an official. But the relevant legal question is not whether the Secretary-General is an official for the purposes of those rules, but whether he is for the purposes of the Tribunal’s Statute. The Tribunal is satisfied he is.
Keywords:
competence of tribunal; executive head; official;
Consideration 2
Extract:
The organisation contends that the Tribunal is not competent to hear this complaint for two reasons. The first which should be addressed is the argument that the complainant was not an “official” of the organisation for the purposes of Article II of the Tribunal’s Statute. The organisation relies in part on the terms on which it recognised the jurisdiction of the Tribunal as contemplated by Article II, paragraph 5, of the Statute. The terms of recognition can be a relevant consideration in determining the scope of the Tribunal’s jurisdiction (see Judgment 2232, consideration 8).
Reference(s)
ILOAT Judgment(s): 2232
Keywords:
competence of tribunal; executive head; official;
Consideration 5
Extract:
[T]he organisation [contends] that the decision not to launch the reappointment procedure, which was made by the Conference, was a bare political decision that is not open to judicial review. But the Tribunal notes that the decision was not entirely political but indirectly raised the question of the application of the conditions in the rules for appointment of the Secretary-General and had a direct legal adverse effect on the complainant, an international civil servant. The observations of the Tribunal in Judgment 2232, consideration 10, are apt to apply:
"a decision terminating the appointment of an international civil servant prior to the expiry of his/her term of office is an administrative decision, even if it is based on political considerations. The fact that it emanates from the Organisation's highest decision-making body cannot exempt it from the necessary review applying to all individual decisions which are alleged to be in breach of the terms of an appointment or contract, or of statutory provisions".
Reference(s)
ILOAT Judgment(s): 2232
Keywords:
administrative decision; appointment; competence of tribunal; executive head;
Judgment 4735
136th Session, 2023
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, a former staff member of IOM at its Country Office in Afghanistan, asserts that a position which was readvertised after its temporary abolition should be assigned to him.
Judgment keywords
Keywords:
cause of action; competence of tribunal; complaint dismissed; former official; summary procedure;
Judgment 4707
136th Session, 2023
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants contest the modifications brought to the subsistence allowance.
Considerations 6-7
Extract:
CERN does not contest that the complainant has personal standing to maintain his complaint. It accepts that the complainant has standing “before the Tribunal in respect of administrative decisions adversely affecting [his] conditions of association” and it refers to Judgment 1166. However, what it does contest concerns the subject matter of the complaint as it is “not related to the Complainant’s conditions of association deriving from his contract or from” the Staff Rules and Regulations (SRR). Part of CERN’s argument in its reply is that payment of subsistence allowances which are the subject of the ceiling, do not derive from the SRR or an appealable decision of the Director-General of CERN (appealable under Article S VI 1.01 of the SRR), but rather are decided upon by an external entity as the employer of the MPA concerned. The pleas on this topic continue in the rejoinder, surrejoinder, further submissions of the complainant and final comments by CERN. Part of the responsive argument of the complainant is that CERN had not provided any proof that the payments of the subsistence allowance of the complainant had been “decided upon by an external entity”.
The Tribunal’s case law establishes that, generally, a party making an allegation bears the burden of proving it (unless, of course, it is not contested). This approach has relevance in cases where a defendant organization challenges the receivability of a complaint and that challenge is based on a fact or facts bearing upon receivability. Cases have arisen where such challenges have failed because the defendant organization has not proved a fact underpinning the contention that the complaint was not receivable (see, for example, Judgments 3034, consideration 13, and 2494, consideration 4). If a distinction is drawn between the general arrangement whereby CERN made payments on behalf of third parties which is principally a matter of process, and an alteration, particularly a material one, to the amount of any such payment based on a decision of the third party communicated to CERN then proof of that decision may be required to sustain the objection to receivability of the type advanced by CERN. It is not at all obvious, even implicitly, from the material relied upon by CERN that the alteration, by way of reduction, of the subsistence allowance commencing in 2020 payable to the complainant, was ever considered by the complainant’s Home Institution, an American university. The absence of evidence leaves open the possibility that, as a matter of fact, the reduction in the payment of the subsistence allowance to the complainant was a direct result of the implementation of the general decision to place a ceiling of ordinarily 5,163 Swiss francs on subsistence payments which did not involve any decision-making or instructions by or from the complainant’s Home Institution. But it is unnecessary to explore this issue any further as, for reasons which follow, the complaint should be dismissed on its merits.
Reference(s)
ILOAT Judgment(s): 2494, 3034
Keywords:
burden of proof; cause of action; competence of tribunal; ratione materiae; ratione personae; receivability of the complaint;
Judgment 4703
136th Session, 2023
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to close the case arising from his reports of alleged misconduct and to reject his request to be provided with an unredacted version of the final investigation report.
Consideration 4
Extract:
[T]he complainant’s request for providing him with a certificate of satisfactory performance is beyond the Tribunal’s competence (see, for example, Judgment 4029, consideration 22).
Reference(s)
ILOAT Judgment(s): 4029
Keywords:
certificate of service; competence of tribunal;
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