Case law (179, 687, 856,-666)
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Keywords: Case law
Total judgments found: 280
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Judgment 4820
138th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to dismiss his moral harassment complaints, and claims compensation for the injury which he considers he has suffered.
Considerations 6-7
Extract:
Insofar as the complaint is directed against the decision of the Director General to dismiss the complainant’s first complaint for moral harassment against Mr P.H. as unfounded, the Tribunal notes the following:
(a) Where the Administration takes any action to deal with a claim, by forwarding it to the competent internal appeal body for example, this step in itself constitutes a “decision upon the claim” within the meaning of Article VII, paragraph 3, of the Statute of the Tribunal, which forestalls an implied rejection that could be referred to the Tribunal (see, for example, Judgments 3715, consideration 4, 3428, consideration 18, and 3146, consideration 12).
(b) Under Article 92(2) of the Staff Regulations, the complainant should have filed a complaint before the Tribunal within 90 days from the expiry of the four-month time limit for the Administration to respond to his internal complaint, even if the matter had been referred to the Joint Committee for Disputes. The present complaint should therefore, in principle, be declared irreceivable as time-barred under Article VII, paragraph 2, of the Statute of the Tribunal, combined with Article 92(2) of the Staff Regulations.
(c) However, in this case, the Tribunal considers that the complainant was misled by the Organisation when it indicated to him that, since his internal complaint had been referred to the Joint Committee for Disputes, he had, in accordance with the Tribunal’s case law on the application of Article VII, paragraph 3, of its Statute, to await the final decision of the Director General before being able to file a complaint with the Tribunal. By so doing, the Organisation overlooked the fact that, pursuant to Article 92(2) of the Staff Regulations, failure by the Director General to respond to an internal complaint within four months from the date on which it was lodged shall be deemed to constitute an implied decision rejecting it, which may be impugned before the Tribunal. There is no need to declare the complaint irreceivable as time-barred, insofar as it is directed against an implied decision to reject from the Director General. To rule otherwise would amount to unduly depriving the complainant of his right to refer the matter to the Tribunal solely due to the conduct of the Organisation.
(d) The Tribunal observes that, while the complainant’s failure to comply with the 90-day time limit to file a complaint with the Tribunal is recognized above as admissible due to the fact that he was wrongly informed by the Organisation that he had to await an express decision, the complainant did not wait for this decision to be issued before filing his complaint. The complaint should therefore, in principle, be declared irreceivable for failure to exhaust internal means of redress, as required by Article VII, paragraph 1, of the Statute of the Tribunal. However, in this case, taking into account the period of one year and seven months that had elapsed between 5 June 2020, when the complainant filed his internal complaint, and 7 February 2022, when he filed his complaint with the Tribunal, and the fact that his counsel had followed up, to no avail, with the Director General, the Tribunal considers that the complainant was faced with a paralysis of the internal appeal procedure that would allow him to proceed directly to it. Under the Tribunal’s case law, a complainant is entitled to file a complaint directly with the Tribunal against the initial decision which she or he intends to challenge where the competent bodies are not able to determine the internal appeal within a reasonable time having regard to the circumstances, provided that she or he has done her or his utmost, to no avail, to accelerate the internal procedure and where the circumstances show that the appeal body was not able to reach a final decision within a reasonable time (see, for example, Judgments 4660, consideration 2, 4271, consideration 5, 4268, considerations 10 and 11, 4200, consideration 3, 3558, consideration 9, 2039, consideration 4, or 1486, consideration 11).
(e) In addition, the Tribunal notes that a final decision was ultimately taken by the Director General on 12 May 2022, as was the opinion of the Joint Committee for Disputes relating thereto, and that that decision was issued in the course of proceedings. Since the Tribunal has the complete dossier in its possession and the parties have had the opportunity to comment fully in their written submissions on the express decision to reject the complainant’s internal complaint of 5 June 2020, and thus on the decision to reject the first harassment complaint inasmuch as it was directed against Mr P.H., it considers that, in accordance with its case law, it is appropriate to treat the internal complaint as being directed against the latter decision of 12 May 2022 (see in particular, for similar cases, Judgments 4769, consideration 3, 4768, consideration 3, 4660, consideration 6, 4065, consideration 3, and 2786, consideration 3).
The present complaint is, accordingly, receivable insofar as it challenges the lawfulness of the Director General’s decision of 12 May 2022 to reject, as unfounded, the first moral harassment complaint directed against Mr P.H. It will therefore be examined from this standpoint by the Tribunal.
Reference(s)
ILOAT Judgment(s): 1486, 2039, 2786, 3146, 3428, 3558, 3715, 4065, 4200, 4268, 4271, 4660
Keywords:
absence of final decision; administrative delay; case law; delay; direct appeal to tribunal; exception; express decision; iloat statute; implied decision; impugned decision; internal appeal; internal remedies exhausted; judicial review; reasonable time; receivability of the complaint; staff member's duties; time limit;
Judgment 4207
129th Session, 2020
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the Director General’s decision to endorse the conclusion of the Office of Internal Oversight Services that it was unable to make a conclusive determination on her sexual harassment claim and to reject her related request for damages.
Consideration 15
Extract:
It is observed that there are no specific provisions in the IAEA’s Staff Regulations and Staff Rules that articulate a comprehensive procedure to deal with a claim of harassment of the type first discussed in the preceding consideration. In the absence of a lawful comprehensive procedure within the IAEA’s Staff Regulations and Staff Rules to deal with a claim of harassment, the IAEA had to respond to the complainant’s claim of harassment in accordance with the Tribunal’s relevant case law. It is well settled in the case law that an international organization has a duty to provide a safe and adequate working environment for its staff members (see Judgment 2706, consideration 5, citing Judgment 2524). As well, “given the serious nature of a claim of harassment, an international organization has an obligation to initiate the investigation itself [...]” (see Judgment 3347, consideration 14). Moreover, the investigation must be initiated promptly, conducted thoroughly and the facts must be determined objectively and in their overall context. Upon the conclusion of the investigation, the complainant is entitled to a response from the Administration regarding the claim of harassment. Additionally, as the Tribunal held in Judgment 2706, consideration 5, “an international organisation is liable for all the injuries caused to a staff member by their supervisor acting in the course of his or her duties, when the victim is subjected to treatment that is an affront to his or her personal and professional dignity” (see also Judgments 1609, consideration 16, 1875, consideration 32, and 3170, consideration 33). Thus, an international organization must take proper actions to protect a victim of harassment.
Reference(s)
ILOAT Judgment(s): 1609, 1875, 2524, 2706, 3170, 3347
Keywords:
applicable law; case law; harassment; sexual harassment;
Judgment 3866
124th Session, 2017
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision not to confirm her appointment at the end of her probationary period.
Consideration 10
Extract:
The Appeal Board’s finding that there was no flaw because there were no provisions in the Employee Handbook fails to have regard to the well-settled case law that a probationer must be given a timely warning that her or his employment is in jeopardy.
Keywords:
case law; probationary period;
Judgment 3848
124th Session, 2017
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to renew his special short-term contract for serious misconduct.
Considerations 6-7
Extract:
Although it is true that the non-renewal of a contract is not one of the disciplinary measures that the Director General may impose pursuant to Staff Regulation 10(b), it does not follow, as IOM contends, that the decision not to renew the complainant’s contract was a discretionary decision. A finding of misconduct is one that is only made in the context of a disciplinary process. For example, in contrast with an administrative determination regarding unsatisfactory service, misconduct must be proved beyond a reasonable doubt, a standard of proof that is only applicable in a disciplinary proceeding. Further, a finding of misconduct is the final step in the disciplinary process before the imposition of a disciplinary measure.
In the present case, it is not disputed that the decision not to renew the complainant’s contract was based solely on the finding of misconduct. In these circumstances, the only conclusion that can be drawn is that the non-renewal of the complainant’s contract was not an administrative discretionary decision, it was a disguised disciplinary measure and was unlawful. The case law consistently states that even if an organization’s regulations, rules and other relevant documents do not provide for formal disciplinary procedures, the disciplinary process requires that “before deciding a disciplinary sanction” the concerned staff member must be given “ample opportunity to take part in adversarial proceedings, in the course of which he is given the opportunity to express his point of view, put forward evidence and participate in the processing of the evidence submitted in support of the charges against him” (see Judgment 3682, consideration 12).
Reference(s)
ILOAT Judgment(s): 3682
Keywords:
case law; disciplinary procedure; due process; hidden disciplinary measure; misconduct;
Judgment 3295
116th Session, 2014
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complaint concerning a disciplinary measure was dismissed by the Tribunal on the grounds that he had not demonstrated the existence of an error warranting the cancellation of the sanction.
Consideration 16
Extract:
"In Judgment 2944, under 50, the Tribunal described the test for proportionality as the disciplinary measure must not be “manifestly out of proportion” to the misconduct. In this case, the Tribunal observes the seriousness of the complainant’s actions. He misused PAHO’s resources and immunity in a fashion that was deliberate and careless; he risked PAHO’s reputation and its relationship with the government of Venezuela; he breached his duty of loyalty to PAHO; and his conduct was incompatible with the performance of his duties as PAHO Country Representative in Venezuela. In these circumstances, it cannot be said that summary dismissal was disproportionate to the misconduct."
Reference(s)
ILOAT Judgment(s): 2944
Keywords:
case law; disciplinary measure; disciplinary procedure; discretion; general principle; misconduct; official; proportionality; serious misconduct; staff member's duties; summary dismissal;
Consideration 11
Extract:
"The complainant also takes the position that PAHO failed to give him a warning or the opportunity to correct the situation prior to bringing disciplinary action. In Judgment 1661, under 3, the Tribunal framed an organisation’s obligations in the following terms: “Before an organisation imposes a disciplinary penalty such as dismissal it must warn the staff member and give him the opportunity not only of stating his own case but also of refuting the organisation’s: in other words, there must be due process. So he must be told of the charges and of the evidence against him. If the proceedings are to be properly adversarial, he must be free to give his own version of the facts, refute that evidence, adduce his own, take part in the discussion of it, and at least once crossquestion the expert and other witnesses. See, for example, Judgments 512 […] under 5; 907 […] under 4; 999 […] under 5; 1082 […] under 18; 1133 […] under 7; 1212 […] under 3; 1228 […] under 4; 1251 […] under 8; 1384 […] under 5, 10 and 15; 1395 […] under 6; 1484 […] under 7 and 8.”"
Reference(s)
ILOAT Judgment(s): 512, 907, 999, 1082, 1133, 1212, 1228, 1251, 1384, 1395, 1484, 1661
Keywords:
case law; disciplinary measure; disciplinary procedure; due process; inquiry; investigation; misconduct; organisation's duties; right to reply; summary dismissal; termination of employment;
Judgment 3279
116th Session, 2014
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complaints regarding the classification of the complainants’ duties following an administrative reform were dismissed by the Tribunal.
Consideration 11
Extract:
"The Tribunal notes that consistent case law states that staff members are not entitled to promotions, as promotions are discretionary decisions (see Judgments 263, under 2, 304, under 1, 940, under 9, 1016, under 3, 1025, under 4, 1207, under 8, 1670, under 14, 2060, under 4, 2835, under 5, and 2944, under 22). In the present case, the decision was made not to hold a promotion round for 2010 due to the budgetary constraints. The Board proposed the relaunch of the promotion exercises in 2011, as mentioned above. Considering Eurocontrol’s intention to hold a promotion round for 2011 subject to the availability of budgetary funds, the Tribunal is of the opinion that the lack of a 2010 promotion round is not unlawful [...]."
Reference(s)
ILOAT Judgment(s): 263, 304, 940, 1016, 1025, 1207, 1670, 2060, 2835, 2944
Keywords:
case law; claim; complaint; decision; discretion; joinder; judicial review; promotion; submissions;
Judgment 3257
116th Session, 2014
Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant successfully challenged the decision to offer him a one-year extension of his fixed-term contract rather than the two-year extensions he had previously received.
Considerations 11 and 12
Extract:
"These facts were significant as they highlight the need for reasons in this case because these circumstances impacted the complainant’s ability to assess whether he should have accepted the offer of the one-year extension of his contract and whether he should challenge the decision.
It is also significant that the complainant was reminded of the deadline [...], when he had not yet received the explanation. Additionally, it was in the letter [...], which included the explanation, that the Executive Secretary informed the complainant that his contract would expire [...] because he had failed to accept the offer of extension. The Tribunal therefore finds that the decision to offer the one-year extension to the complainant was flawed by the failure of the Administration to provide a timely explanation for that decision."
Keywords:
case law; contract; decision; duration of appointment; extension of contract; flaw; notice; offer; termination of employment;
Judgment 3216
115th Session, 2013
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests her performance appraisal for its content and on the basis of what she considers to be procedural flaws.
Consideration 6
Extract:
"A fundamental principle of the adversarial process is the right to know and have an opportunity to respond to the evidence adduced by the opposing party (see Judgments 1815, under 5, and 2700, under 6). Upon receipt of the report, the Board, which ultimately relied upon it, was obliged to advise the complainant of the receipt of new evidence and give her an opportunity to respond before taking it into consideration."
Reference(s)
ILOAT Judgment(s): 1815, 2700
Keywords:
adversarial proceedings; advisory body; case law; confidential evidence; disclosure of evidence; duty to inform; general principle; organisation's duties; right to be heard; staff member's interest;
Judgment 3208
115th Session, 2013
International Federation of Red Cross and Red Crescent Societies
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the termination of his contract following the abolition of his post.
Consideration 11
Extract:
"As the Tribunal has noted, the right to an internal appeal is a safeguard enjoyed by international civil servants (see Judgment 2781). If the ultimate decision-maker rejects the conclusions and recommendations of the internal appeal body, the decision-maker is obliged to provide adequate reasons (see Judgments 2278, 2355, 2699, 2807 and 3042). The value of the safeguard is significantly eroded if the ultimate decision-making authority can reject conclusions and recommendations of the internal appeal body without explaining why. If adequate reasons are not required, then room emerges for arbitrary, unprincipled or even irrational decision-making."
Reference(s)
ILOAT Judgment(s): 2278, 2355, 2699, 2781, 2807, 3042
Keywords:
bias; case law; decision; duty to substantiate decision; executive head; grounds; impugned decision; internal appeals body; motivation of final decision; organisation's duties; purpose; recommendation; refusal; safeguard;
Judgment 3203
115th Session, 2013
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complaint is directed at the Secretary-General’s decision to refuse to recognise same-sex marriages.
Consideration 8
Extract:
"It is true that the case law of the Tribunal on the question of benefits for same-sex partners has developed in the last decade. This is illustrated by Judgment 2860. Indeed, there are opinions of individual judges concluding that staff rules denying access to dependency benefits to same-sex partners are unenforceable because they violate fundamental principles of law (see, for example, the dissenting opinion of Justice Hugessen in Judgment 2193)."
Reference(s)
ILOAT Judgment(s): 2193, 2860
Keywords:
case law; definition; dependant; difference; enforcement; family allowance; interpretation; marital status; provision; same-sex marriage; social benefits; staff regulations and rules;
Judgment 3181
114th Session, 2013
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant relies on the precedent established in Judgment 2782 to claim interest for late payment of a back pay.
Judgment keywords
Keywords:
case law; complaint dismissed; final decision;
Judgment 3161
114th Session, 2013
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to transfer him which, in his view, violates his status as an employee.
Considerations 6-7
Extract:
"[T]he task of the Internal Appeals Committee is to determine whether the decision under appeal is the correct decision or whether, on the facts, some other decision should be made. While provisions establishing an internal appeal committee or board may limit its functions, this is not the case in relation to this Internal Appeals Committee established under the Service Regulations applying to the permanent employees of the EPO.
Of course the authority of the Internal Appeals Committee is limited to making recommendations and, to that extent, the ultimate decision-making power remains, in a case such as the present, with the President of the Office. However, the President is obliged to give proper consideration to the recommendations of the Committee and not avoid addressing the reasoning of its members by wrongly indicating, as in this case, that the majority of the Committee’s members had exceeded the limits of their role in determining the appeal."
Reference(s)
ILOAT Judgment(s): 2781
Keywords:
advisory body; advisory opinion; case law; decision; decision-maker; due process; duty to substantiate decision; general principle; internal appeals body; recommendation;
Judgment 3153
114th Session, 2013
World Meteorological Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant applies for interpretation and execution of Judgment 2861.
Consideration 6
Extract:
"As the complainant was not reinstated, her employment relationship with WMO ended on 3 November 2006 and with her separation from service, her right to participate in the UNJSPF ended (see Judgments 1338, 1797 and 1904). Further, as also stated in Judgment 2621 under 5, 'had it been its intent the Tribunal would have specifically ordered the payment of an amount equivalent to the pension fund contributions that would otherwise have been paid by the [organisation]'."
Reference(s)
ILOAT Judgment(s): 1338, 1797, 1904, 2621, 3061
Keywords:
application for execution; application for interpretation; case law; contribution rate; contributions; judgment of the tribunal; organisation's duties; pension; reinstatement; unjspf;
Judgment 3113
113th Session, 2012
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
The Tribunal concurs with the Joint Advisory Appeals Board's finding that the complainant was entitled to be reintegrated in a suitable post effective 1 April 2008 and that the Office had an obligation to ensure that it had the ability to do so. The Tribunal also concurs with the Board that as Judgment 2755 was delivered subsequent to that date it cannot rely on that judgment to explain its earlier conduct.
Keywords:
case law; special leave;
Judgment 3035
111th Session, 2011
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 18
Extract:
The complainant was suspended from duty on 4 September 2008.
"The Tribunal finds that, in maintaining the complainant's suspension by his decision of 6 July 2009, the Director General extended the duration of this suspension beyond the reasonable limit accepted by the case law and thus caused the complainant moral and professional injury."
Keywords:
breach; case law; cause; date; executive head; extension of contract; injury; moral injury; professional injury; reasonable time; suspension;
Judgment 3032
111th Session, 2011
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 22
Extract:
"[W]hen an international organisation wants to fill a post by competition, it must comply with the material rules and the general precepts of the case law (see, for example, Judgment 2163 [...], under 3)."
Reference(s)
ILOAT Judgment(s): 2163
Keywords:
appointment; case law; competition; consequence; decision; due process; general principle; organisation's duties; provision; staff regulations and rules; written rule;
Judgment 3013
111th Session, 2011
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3
Extract:
"The obligation to pay compound interest is always an exception. According to the Tribunal's case law, such an obligation must arise from the operative part of its judgments. In this case, to quote the language of consideration 4 of Judgment 802, "if the Tribunal had meant compound interest, [...] it would have used words to that effect"."
Reference(s)
ILOAT Judgment(s): 802
Keywords:
application for execution; case law; consequence; exception; interest on damages; judgment of the tribunal; organisation's duties; payment;
Judgment 3003
111th Session, 2011
International Fund for Agricultural Development
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 30
Extract:
"To accept that an organisation can be released, through the grant of a stay of execution, from the obligation to execute a judgment unfavourable to itself, on the grounds that it has challenged the validity of the judgment under Article XII of the Statute [of the Tribunal], would not only constitute a major exception to the application of [the] case law but would also, above all, seriously impair the legitimate right of the staff member concerned to benefit from immediate application of the judgment."
Reference(s)
ILOAT reference: Article XII of the Statute
Keywords:
breach; case law; complainant; enforcement; exception; execution of judgment; grounds; iloat statute; judgment of the tribunal; organisation's duties; right; right of appeal; suspension of the execution of a judgment;
Judgment 2948
109th Session, 2010
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
"While Article VII, paragraph 3, of the [Tribunal's] Statute permits a complainant to have recourse to the Tribunal '[w]here the Administration fails to take a decision upon any claim of an official within sixty days from the notification of the claim to it', the Tribunal has consistently held that the forwarding of the claim to the advisory appeal body constitutes a 'decision upon [the] claim' within the meaning of these provisions, which is sufficient to forestall an implied rejection (see, for example, Judgments 532, 762, 786 or 2681)."
Reference(s)
ILOAT reference: Article VII, paragraph 3, of the Statute
ILOAT Judgment(s): 532, 762, 786, 2681
Keywords:
absence of final decision; case law; date of notification; decision; direct appeal to tribunal; failure to answer claim; iloat statute; implied decision; internal appeal; internal appeals body; refusal; time limit;
Judgment 2944
109th Session, 2010
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 50
Extract:
"[A]ccording to firm precedent, as recalled in particular in Judgments 207, 1984 and 2773, the disciplinary authority has a discretion to determine the severity of a disciplinary measure justified by a staff member's misconduct, provided that the measure adopted is not manifestly out of proportion to the offence. It cannot be alleged that termination of the complainant’s appointment, the disciplinary measure chosen, was manifestly out of proportion to the degree of seriousness of the acts listed above, notwithstanding the complainant’s length of service with UNESCO and her recognised professional abilities. The Tribunal therefore considers that, in taking this decision, the Director General did not exceed the limits of his discretionary authority."
Reference(s)
ILOAT Judgment(s): 207, 1984, 2773
Keywords:
case law; condition; disciplinary measure; disciplinary procedure; discretion; misconduct; proportionality; summary dismissal;
Consideration 22
Extract:
"[A]ccording to firm precedent, international civil servants do not have a right to promotion (see, for example, Judgments 1207, under 8, or 2006, under 12) and [...] decisions in this domain, which are taken at the discretion of the executive head of the organisation, are subject to only limited judicial review (see, for example, Judgments 1670, under 14, or 2221, under 9)."
Reference(s)
ILOAT Judgment(s): 1207, 1670, 2006, 2221
Keywords:
case law; decision; discretion; executive head; judicial review; limits; official; promotion; right;
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