Definition (601,-666)
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Keywords: Definition
Total judgments found: 156
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Judgment 2892
108th Session, 2010
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 6-8
Extract:
"The ITU argues that the [...] complaint with respect to the complainant's dismissal is [...] irreceivable on the basis that, as he has not pursued his internal appeal following his request [...] for a final review of the decision to dismiss him [...]. [T]he question remains whether the Staff Regulations and Staff Rules permit an internal appeal once a person has ceased to be a staff member. If they do not, the steps taken by the complainant to initiate an internal appeal were ineffective. More to the point, there were no internal remedies that he could pursue before lodging his complaint."
"Chapter XI of the ITU Staff Regulations and Staff Rules makes provision for appeals by staff members. [...] There is nothing in Chapter XI of the Staff Regulations and Staff Rules to indicate that a former staff member may lodge an appeal as therein provided. [...] In these circumstances, the term "staff member" in Chapter XI is to be construed as restricted to a serving staff member."
"In Judgment 2840, also a case where the relevant regulations and rules relating to internal appeals referred only to a "staff member" and not a "former staff member", it was held that "where a decision has not been communicated until after a staff member has separated from service, the former staff member does not have recourse to the internal appeal process". The same is true of a staff member who has either been summarily dismissed or dismissed with such short notice that it is impracticable to commence internal appeal proceedings before the dismissal takes effect."
Reference(s)
ILOAT Judgment(s): 2582, 2840
Keywords:
definition; direct appeal to tribunal; internal remedies exhausted; official; receivability of the complaint; staff regulations and rules; status of complainant; vexatious complaint;
Judgment 2888
108th Session, 2010
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"The Tribunal has already had occasion to rule that it has no jurisdiction to hear a dispute relating to a contract concluded with an independent contractor or collaborator which contains [...] an arbitration clause (see Judgments 2017, under 2(a), and 2688, under 5)."
Reference(s)
ILOAT Judgment(s): 2017, 2688
Keywords:
arbitration; competence of tribunal; contract; definition; external collaborator; ratione personae; settlement out of court;
Judgment 2865
108th Session, 2010
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4(b)
Extract:
Article 72 of the Service Regulations for Permanent Employees of the European Patent Office, the EPO's secretariat, concerns the expatriation allowance. Article 72(1) reads as follows:
"An expatriation allowance shall be payable to permanent employees who, at the time they take up their duties or are transferred:
a) hold the nationality of a country other than the country in which they will be serving, and
b) were not permanently resident in the latter country for at least three years, no account being taken of previous service in the administration of the country conferring the said nationality or with international organisations."
"The country in which the permanent employee is permanently resident, within the meaning of Article 72(1)(b) of the Service Regulations, is that in which he or she is effectively living, that is to say the country with which he or she maintains the closest objective and factual links. The closeness of these links must be such that it may reasonably be presumed that the person concerned is resident in the country in question and intends to remain there. A permanent employee interrupts his or her permanent residence in a country when he or she effectively leaves that country with the intention - which must be objectively and reasonably credible in the light of all the circumstances - to settle for some length of time in another country (see Judgment 2653, under 3)."
Reference(s)
Organization rules reference: Article 72(1) of the Service Regulations for Permanent Employees of the European Patent Office
ILOAT Judgment(s): 2653
Keywords:
amendment to the rules; appointment; condition; definition; duty station; intention of parties; member state; nationality; non-resident allowance; official; organisation; payment; period; residence; staff regulations and rules; transfer;
Judgment 2854
107th Session, 2009
International Federation of Red Cross and Red Crescent Societies
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 18-20
Extract:
The complainant asserts that the decision to terminate his contract is tainted with procedural irregularities and amounts to a disguised disciplinary measure.
"In Judgment 2090 the Tribunal explained that the provisions of the Federation's Staff Regulations dealing with termination do not authorise the arbitrary termination of contracts and added, under 5, that 'there must be no breach of adversarial procedure [...] nor abuse of authority, nor obvious misappraisal of the facts'. The same applies to Article 11.4 of the Staff Regulations which deals with termination at will. Further, a decision taken pursuant to the latter must be taken in the interests of the Federation. Thus, a decision purportedly taken under Article 11.4 of the Staff Regulations in the interests of the Federation will be set aside if it constitutes a disguised disciplinary measure. A decision of that kind is not taken in the interest of the Federation but for the purpose of avoiding the procedural requirements that must be observed in the case of disciplinary measures.
"The Tribunal identified a hidden sanction in Judgment 2659 as 'a measure which appears to be adopted in the interests of the Organization and in accordance with the applicable rules, but which in reality is a disciplinary measure imposed as a penalty for a transgression, whether real or imaginary'. The Tribunal also pointed out in that judgment that '[t]he true disciplinary nature of an administrative measure that constitutes a hidden sanction is not always apparent' and that, accordingly, it is 'necessary to examine the particular circumstances in each case'.
"There are a number of matters in the present case that indicate that the decision to terminate the complainant's contract was a disciplinary measure. In this regard, the complainant was requested not to report to his office, his access to electronic files and to e-mail was terminated and he was allowed access to the Federation's building only to collect his personal belongings. Further, the letter of termination [...] referred to the complainant's refusal to accept the Secretary General's instructions and said that his 'defiance of [the Secretary General's] instructions [might] constitute grounds for termination for valid reasons with immediate effect'. The Secretary General had already stated in July 2006 that he considered the complainant had been guilty of misconduct [...] and had then warned him of the consequences of noncompliance with his formulation of principles [...]. Additionally, the Secretary General's letter [...] referred to the 'seriousness of [the] matter and the potential consequences it [might] entail'."
Reference(s)
ILOAT Judgment(s): 2090, 2659
Keywords:
definition; disciplinary measure; hidden disciplinary measure; judicial review; termination of employment;
Judgment 2790
106th Session, 2009
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
"A second decision whose purpose is identical to that of a previous decision may [...] constitute a new decision and set off a new time limit for an appeal if it provides further justification, relates to different issues or is based on new grounds."
Keywords:
decision; definition; difference; grounds; purpose; time limit;
Judgment 2788
106th Session, 2009
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 1
Extract:
"[The] purpose [of probation] is to provide an organisation with an opportunity to assess an individual's suitability for a position. In the course of making this assessment, an organisation must establish clear objectives against which performance will be assessed, provide the necessary guidance for the performance of the duties, identify in a timely fashion the unsatisfactory aspects of the performance so that remedial steps may be taken, and give a specific warning that the continued employment is in jeopardy (see Judgment 2529, under 15)."
Reference(s)
ILOAT Judgment(s): 2529
Keywords:
candidate; criteria; definition; fitness for international civil service; organisation; organisation's duties; post; probationary period; purpose; qualifications; refusal; unsatisfactory service; warning; work appraisal;
Judgment 2760
105th Session, 2008
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
The complainant, a Canadian national, married a person of the same sex, as she is permitted to do under the law in force in Canada. She immediately informed the Agency of her new marital status and applied for the dependency benefits to which staff members with a spouse are eligible, but her application was rejected. The defendant points out that, for the purpose of applying its Staff Regulations and Staff Rules, it has a definition of the term "spouse" which refers only to the partners of a union between persons of opposite sex, since the Guide to Dependency Benefits, which was drawn up for the staff, indicates that the term "'[s]pouse' for all purposes of the Staff Regulations and Staff Rules is defined to mean the husband or wife". "But this mere information document, which was prepared by the Administration and has no normative value, clearly cannot prescribe the adoption of a restrictive definition which does not appear in the applicable texts themselves.
Furthermore, while the Tribunal notes that the same definition was also given in a Notice to the Staff of 11 July 2005, that document likewise could not narrow the scope of the concept of 'spouse' to which the Staff Regulations and Staff Rules refer. Although the secretariat of an organisation may always circulate a Notice to the Staff to clarify certain provisions of its staff regulations and rules, such a notice cannot impose on staff any restrictive conditions other than those stipulated in the provisions themselves."
Reference(s)
Organization rules reference: Guide to Dependency Benefits
Keywords:
administrative instruction; applicable law; binding character; condition; definition; dependant; domestic law; enforcement; family allowance; information note; limits; marital status; organisation; precedence of rules; provision; publication; purpose; refusal; request by a party; same-sex marriage; staff regulations and rules; written rule;
Judgment 2758
105th Session, 2008
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
"[D]eceit consists in the manoeuvres of one party to mislead the other and obtain his or her consent. Deceit cannot be presumed; it must be proved, if necessary by means of strong, precise and concurring presumptions."
Keywords:
admissibility of evidence; definition; evidence; lack of consent;
Judgment 2757
105th Session, 2008
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 13
Extract:
"Malice is generally described either as the absence of good faith or as acting from improper motive. Frequently, the absence of a belief on reasonable grounds is sufficient to base an inference of malice. So, too, is the communication of information that is defamatory of a person to those who do not have a legitimate interest in obtaining that information."
Keywords:
communication to third party; definition; good faith; grounds; intention of parties;
Consideration 9
Extract:
"In the context of 'serious misconduct', the question whether a statement was made falsely is not simply whether the statement is true or false. A statement made innocently, which turns out to be false, does not constitute serious misconduct. A statement is made innocently if the person concerned honestly believes on reasonable grounds that the statement is true. Conversely, for the purposes of serious misconduct, a statement is falsely made if it is both untrue and the person concerned did not believe on reasonable grounds that it was true."
Keywords:
definition; grounds; intention of parties; judicial review; misrepresentation; serious misconduct;
Judgment 2745
105th Session, 2008
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 13
Extract:
"'Constructive dismissal' is a phrase used to signify that an organisation has breached the terms of a staff member's contract in such a way as to indicate that it will no longer be bound by that contract."
Keywords:
breach; condition; contract; definition; implied decision; official; organisation; termination of employment;
Consideration 19
Extract:
"It was said in Judgment 2524 that, although harassment and mobbing do not require bad faith or prejudice or other malicious intent, 'behaviour will not be characterised as harassment or mobbing if there is a reasonable explanation for the conduct in question'. Thus, it was said in Judgment 2370 that conduct that 'had a valid managerial purpose or was the result of honest mistake, or even mere inefficiency' would not constitute harassment. However and as pointed out in Judgment 2524, 'an explanation which is prima facie reasonable may be rejected if there is evidence of ill will or prejudice or if the behaviour in question is disproportionate to the matter which is said to have prompted the course taken'."
Reference(s)
ILOAT Judgment(s): 2370, 2524
Keywords:
bias; condition; conduct; consequence; definition; evidence; good faith; grounds; intention of parties; judgment of the tribunal; mistake of fact; organisation's duties; proportionality; qualifications; respect for dignity;
Judgment 2706
104th Session, 2008
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
The complainant, who was sexually harassed by her supervisor, wants the Tribunal to order that she be promoted. "[T]he Organization is of course right in saying that the compensation for her injuries should not take the form of being granted a higher grade. The advancement of an official naturally obeys its own logic related to the classification of the job done and the professional merit of the person in question, which has nothing to do with the logic behind compensation for injuries which may have been caused to this person by the international organisation employing him or her."
Keywords:
allowance; compensation; definition; difference; harassment; injury; organisation; organisation's duties; post classification; promotion; qualifications; request by a party; respect for dignity; sex discrimination; supervisor;
Judgment 2698
104th Session, 2008
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11
Extract:
"[T]he measure of suspension constitutes [...] an interim measure which in no way prejudges the decision on the merits regarding a possible disciplinary measure, but which is designed to safeguard the interests of the Organization pending the outcome of an investigation to ascertain whether the accusations have any substance or not."
Keywords:
definition; disciplinary measure; inquiry; investigation; organisation's interest; provisional decision; purpose; suspensive action;
Judgment 2696
104th Session, 2008
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"It was said in Judgment 832 that an acquired right is one that a staff member may expect to survive alteration of the staff rules (see also Judgment 1226). The right may derive from the terms of appointment, the staff rules or from a decision. In Judgment 61 it was said that the amendment of a rule to an official's detriment and without his consent amounts to a breach of an acquired right when the structure of the contract of appointment is disturbed or there is impairment of any fundamental term of appointment in consideration of which the official accepted appointment."
Reference(s)
ILOAT Judgment(s): 61, 832, 1226
Keywords:
acquired right; amendment to the rules; breach; condition; consequence; contract; decision; definition; injury; official; provision; request by a party; staff regulations and rules; terms of appointment; written rule;
Judgment 2693
104th Session, 2008
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 2
Extract:
"The Tribunal's judgments have the authority of res judicata. They will be reviewed only in exceptional circumstances and on limited grounds. These grounds include the discovery of a new fact. A new fact is a fact on which the party claiming it was unable to rely through no fault of its own; it must be a material fact likely to have a bearing on the outcome of the case (see Judgments 748, under 3, 1294, under 2, 1504, under 8 and 2270, under 2)."
Reference(s)
ILOAT Judgment(s): 748, 1294, 1504, 2270
Keywords:
admissible grounds for review; application for review; condition; definition; exception; iloat; judgment of the tribunal; limits; misconduct; new fact on which the party was unable to rely in the original proceedings; res judicata;
Judgment 2659
103rd Session, 2007
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
"A hidden sanction is a measure which appears to be adopted in the interests of the Organization and in accordance with the applicable rules, but which in reality is a disciplinary measure imposed as a penalty for a transgression, whether real or imaginary. The true disciplinary nature of an administrative measure that constitutes a hidden sanction is not always apparent. It is therefore necessary to examine the particular circumstances in each case where there is an allegation that an administrative measure is a hidden sanction."
Keywords:
definition; disciplinary measure; enforcement; hidden disciplinary measure; judicial review; misconduct; organisation's interest; purpose; written rule;
Judgment 2657
103rd Session, 2007
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
The complainant contests the decision not to appoint him to a post as examiner at the European Patent Office on the grounds that he did not meet the physical requirements for the post. The Organisation submits that the Tribunal is not competent to hear complaints from external applicants for a post in an organisation that has recognised its jurisdiction. "However regrettable a decision declining jurisdiction may be, in that the complainant is liable to feel that he is the victim of a denial of justice, the Tribunal has no option but to confirm the well-established case law according to which it is a court of limited jurisdiction and 'bound to apply the mandatory provisions governing its competence', as stated in Judgment 67, delivered on 26 October 1962. [...]
It [can be inferred from Article II of the Statute of the Tribunal] that persons who are applicants for a post in an international organisation but who have not been recruited are barred from access to the Tribunal. It is only in a case where, even in the absence of a contract signed by the parties, the commitments made by the two sides are equivalent to a contract that the Tribunal can decide to retain jurisdiction (see for example Judgment 339). According to Judgment 621, there must be 'an unquestioned and unqualified concordance of will on all terms of the relationship'. That is not the case, however, in the present circumstances: while proposals regarding an appointment were unquestionably made to the complainant, the defendant was not bound by them until it had established that the conditions governing appointments laid down in the regulations were met."
Reference(s)
ILOAT reference: Article II of the Statute
ILOAT Judgment(s): 67, 339, 621
Keywords:
appointment; candidate; case law; competence of tribunal; complaint; condition; consequence; contract; declaration of recognition; definition; exception; external candidate; formal requirements; grounds; handicapped person; iloat statute; intention of parties; interpretation; medical examination; medical fitness; open competition; organisation; post; proposal; provision; refusal; terms of appointment; vested competence; written rule;
Judgment 2646
103rd Session, 2007
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"[T]he Tribunal recalls that the reason for probation is to enable an organisation to assess the probationer's suitability for a position. For this reason, it has recognised that a high degree of deference ought to be accorded to an organisation's exercise of its discretion regarding decisions concerning probationary matters including the confirmation of appointment, the extensions of a probationary term, and the identification of its own interests and requirements."
Keywords:
decision; definition; discretion; extension of contract; judicial review; limits; organisation; organisation's interest; post; probationary period; purpose; qualifications;
Judgment 2643
103rd Session, 2007
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
The complainant, a British national, entered into a "Civil Solidarity Contract" (PACS) under French law with his same-sex partner and had his partnership registered under the Civil Partnership Act applicable to British citizens. The ITU refused to recognise his partner as his dependent spouse for determination of the benefits pertaining to that status. "The Tribunal has accepted in several recent judgments that same-sex marriages (see Judgment 2590) and unions taking the form of 'registered partnerships' must be recognised where the national legislation applicable to the staff member concerned allows persons who have contracted such unions to be treated as 'spouses' (see Judgments 2549 and 2550). The important difference between the present case and those previously decided lies in the fact that the ITU Staff Regulations and Staff Rules explicitly define the concept of spouses as denoting husband and wife in a large number of provisions, and that, contrary to the situations examined in Judgments 2549 and 2550, the ITU refuses to accept that same-sex unions lawfully contracted under the national legislation of the official concerned may be taken into consideration for the purpose of applying the Staff Regulations and Staff Rules. It follows that the defendant was not wrong in asserting that, in the light of the case law and the applicable Regulations and Rules as they currently stand, the Secretary-General was barred from giving the term 'spouse' the broad interpretation requested."
Reference(s)
ILOAT Judgment(s): 2549, 2550, 2590
Keywords:
applicable law; case law; definition; dependant; difference; domestic law; enforcement; family allowance; interpretation; judgment of the tribunal; marital status; provision; purpose; refusal; same-sex marriage; social benefits; staff regulations and rules; written rule;
Judgment 2629
103rd Session, 2007
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"Ordinarily, there is no decision with respect to matters falling outside normal entitlements until a specific claim is made and either expressly or impliedly accepted or rejected (see Judgment 2538). [...] However, it is well settled that a decision does not require any particular formality and may be constituted by any communication that is reasonably capable of being understood to constitute a decision on the matter (see Judgments 532 and 2573)."
Reference(s)
ILOAT Judgment(s): 532, 2538, 2573
Keywords:
condition; decision; definition; express decision; formal requirements; implied decision; refusal; request by a party; right;
Judgment 2556
101st Session, 2006
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 13
Extract:
"It is well settled that the principle of equality requires the equal application of the relevant law, not its equal misapplication."
Keywords:
condition; definition; enforcement; equal treatment; general principle; written rule;
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