Judgment No. 3902
Decision
1. The complaint is dismissed. 2. The CDE’s counterclaim is dismissed.
Summary
The complainant challenges the decision not to pay him the indemnity due in the event of the closure of the CDE.
Judgment keywords
Keywords
permanent appointment; abolition of post; retirement; complaint dismissed
Consideration 5
Extract:
It should be remembered that, according to firm precedent, “the principle of equal treatment requires, on the one hand, that officials in identical or similar situations be subject to the same rules and, on the other, that officials in dissimilar situations be governed by different rules defined so as to take account of this dissimilarity (see, for example, Judgments 1990, under 7, 2194 under 6(a), 2313, under 5, or 3029, under 14)” (see Judgment 3787, under 3).
Reference(s)
ILOAT Judgment(s): 1990, 2194, 2313, 3029, 3787
Keywords
equal treatment
Consideration 9
Extract:
There is an abuse of authority when an administration acts for reasons that are extraneous to the organisation’s best interests and seeks some objective other than those which the authority vested in it is intended to serve (see Judgment 1129, under 8; see also Judgment 2885, under 12).
Reference(s)
ILOAT Judgment(s): 1129, 2885
Keywords
misuse of authority; abuse of power
Consideration 11
Extract:
A steady line of precedent has it that “bad faith cannot be presumed, it must be proven. Additionally, bad faith requires an element of malice, ill will, improper motive, fraud or similar dishonest purpose” (see Judgment 2800, under 21, cited in Judgment 3154, under 7; see also Judgment 3407, under 15).
Reference(s)
ILOAT Judgment(s): 2800, 3154, 3407
Keywords
burden of proof; bad faith
Consideration 11
Extract:
The right which the Tribunal must uphold is the right to remain in employment, not the right to termination thereof. The Tribunal considers that termination of employment must be an ultima ratio measure to which recourse may be had only after all other alternatives have been examined and found to be impracticable (see Judgment 2830, under 8(a)). At all events, continued employment must be preferred to redundancy.
Reference(s)
ILOAT Judgment(s): 2830
Keywords
organisation's duties; abolition of post; termination of employment
Consideration 12
Extract:
In [the complainant's] opinion, the CDE committed an abuse of authority by granting an indemnity only to those staff members who agreed to sign the settlement agreement and who waived their right of appeal. Such reasoning is tantamount to considering that any agreement providing for waiver of the right of appeal is unlawful. This is, however, inconsistent with the case law of the Tribunal, which held in Judgment 3867, under 5, that “in the context of a settlement, as is the case here, the infringement of an official’s right to appeal or file a complaint is not unlawful. On the contrary, it is entirely acceptable for an official to waive such rights in return for the benefits gained from the settlement. This is, furthermore, common practice in the context of separation agreements, as here.” Naturally, as this judgment makes clear, the agreement must make provision for benefits over and above those stemming from the applicable staff regulations, otherwise this would amount to undue pressure brought to bear on the official in return for nothing but the organisation’s honouring of its own duties (see Judgment 2715, under 13; see also Judgment 3091, under 13).
Reference(s)
ILOAT Judgment(s): 2715, 3091, 3867
Keywords
waiver of right of appeal
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