Duty of care (645,-666)
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Keywords: Duty of care
Total judgments found: 137
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Judgment 4077
127th Session, 2019
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The UPU applies for interpretation and review of Judgment 3928 alleging errors of fact, inter alia, and asserts that it is impossible to give effect to the Tribunal’s order to reinstate the complainant. The complainant applies for execution of Judgment 3928.
Consideration 25
Extract:
[T]he [organization] could not refer to the complainant’s alleged misconduct as a reason not to reinstate him as no disciplinary proceeding has occurred in that regard, so misconduct has never been proven. It is all the more grave when considering that the alleged reason for the abolition of the posts was because of financial constraints. The abolition of a post can never be based on a staff member’s conduct, as that would constitute a hidden sanction. The [organization]’s presentation before the Council of Administration constituted a breach of the duty of care and of the adversarial principle, as the complainant was not given any opportunity to defend himself and his reputation from the allegations. The UPU must respect the dignity of its staff and preserve their reputation.
Keywords:
abolition of post; adversarial proceedings; budgetary reasons; due process; duty of care; hidden disciplinary measure; misconduct; reinstatement;
Judgment 4072
127th Session, 2019
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the lawfulness of the mutually agreed separation agreement which he signed.
Consideration 8
Extract:
As regards the lack of both transparency and information, the Tribunal recalls that, according to its case law, the principle of good faith and the concomitant duty of care demand that international organizations treat their staff with due consideration in order to avoid causing them undue injury; an employer must consequently inform officials in advance of any action that may imperil their rights or harm their rightful interests (see Judgments 2116, consideration 5, 2768, consideration 4, 3024, consideration 12, and 3861, consideration 9).
In the present case, the organization disregarded the principle of good faith and its duty of care. Indeed, as regards his past performance, the complainant was unaware, at the time of the meetings in question, of the outcome of the calibration of his evaluation referred to by those conducting the meeting. Nor was he informed of the competencies that had supposedly been evaluated in anticipation of the restructuring of the organization or of the new specific requirements of his post, which, according to the Appeal Board, were not reflected in the job descriptions, or of the new objectives, which, again according to the Board, had not been discussed with him. Unaware of the reasons why the organization considered that he did not meet the requirements in question, the complainant was not in a position to make a fully informed choice between the two proposed alternatives. It follows that his consent was vitiated.
Reference(s)
ILOAT Judgment(s): 2116, 2768, 3024, 3861
Keywords:
duty of care; duty to inform; good faith; lack of consent; performance evaluation;
Judgment 4071
127th Session, 2019
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the lawfulness of the mutually agreed separation agreement which they signed.
Consideration 10
Extract:
As regards the lack of both transparency and information, the Tribunal recalls that, according to its case law, the principle of good faith and the concomitant duty of care demand that international organizations treat their staff with due consideration in order to avoid causing them undue injury; an employer must consequently inform officials in advance of any action that may imperil their rights or harm their rightful interests (see Judgments 2116, consideration 5, 2768, consideration 4, 3024, consideration 12, and 3861, consideration 9).
In the present case, the organization disregarded the principle of good faith and its duty of care. Indeed, as regards their past performance, the complainants were unaware, at the time of the meetings in question, of the outcome of the calibration of their evaluations referred to by those conducting the meeting. Nor were the complainants informed of the competencies that had supposedly been evaluated in anticipation of the restructuring of the organization or of the new specific requirements of their posts, which, according to the Appeal Board, were not reflected in the job descriptions, or of the new objectives, which, again according to the Board, had not been discussed with them. Unaware of the reasons why the organization considered that they did not meet the requirements in question, the complainants were not in a position to make a fully informed choice between the two proposed alternatives. It follows that their consent was vitiated.
Reference(s)
ILOAT Judgment(s): 2116, 2768, 3024, 3861
Keywords:
duty of care; duty to inform; good faith; lack of consent; performance evaluation;
Judgment 4064
127th Session, 2019
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges a request made by the Administration of the FAO that he provide comments, while he was on certified sick leave, on a report issued by the Investigation Panel appointed to investigate allegations of harassment against him.
Considerations 8-9
Extract:
Based on the evidence before the Tribunal, there is nothing in the FAO rules regime and no proven practice which provide guidance on how the requirement of Part II(b)(iv)(g) of the Policy on the Prevention of Harassment is to be fulfilled where a staff member who is accused of harassment is on certified sick leave. Given the FAO’s duty under the Policy on the Prevention of Harassment to investigate harassment complaints, it is reasonable that it could ask a staff member who is on sick leave to comment upon an IP report if doing so would not exacerbate the illness which occasioned the grant of sick leave and if she or he is fit to do so.
[...] In the Tribunal’s view, the FAO took reasonable steps to discharge its duty to accord due process to the complainant, as well as its duty of care and its duty to be fair to him, while it sought to discharge its duty to implement its Policy on the Prevention of Harassment.
Keywords:
due process; duty of care; harassment; health reasons; inquiry; investigation; medical fitness; sick leave;
Judgment 4060
127th Session, 2019
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, an ICC Senior Security Officer, contests the decision to temporarily withdraw his authorisation to carry a firearm.
Consideration 29
Extract:
[A] review of the chronology [...] shows that the Administration failed to provide the complainant with relevant information in a timely manner. This led to unnecessary delays in the resolution of the complainant’s case, misunderstandings, and was an affront to the complainant’s dignity. This ongoing failure to provide the complainant with the information which he was entitled to receive is exacerbated by the fact that the ICC has not advanced any reasons for withholding the information. The complainant is entitled to moral damages in the amount of 20,000 euros and costs in the amount of 6,000 euros.
Keywords:
duty of care; duty to inform; injury; moral injury; respect for dignity;
Judgment 4051
126th Session, 2018
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss him for misconduct.
Consideration 11
Extract:
The President’s decision to request the complainant to undergo a further medical examination to determine whether his medical condition may have guided his behaviour and affected his accountability for his actions accorded with the exercise of the EPO’s duty of care towards the complainant, as was recently explained by the Tribunal in Judgment 3972.
Reference(s)
ILOAT Judgment(s): 3972
Keywords:
disciplinary measure; duty of care; illness;
Judgment 4037
126th Session, 2018
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the non-renewal of her temporary appointment.
Consideration 11
Extract:
The Tribunal observes that, in this case, the complainant objects to the fact that the Organization did not allow her to reach the five years of contributions that would have entitled her to draw a retirement pension from the UNJSPF. However, as the Tribunal has already stated, an international organisation’s duty of care towards its officials does not compel it to extend an official’s appointment for the sole purpose of enabling her or him to draw a pension from the UNJSPF (see, for a comparable case, Judgment 3874, under 14).
Reference(s)
ILOAT Judgment(s): 3874
Keywords:
duty of care; pension; unjspf;
Judgment 4028
126th Session, 2018
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge Service Order No.14/10 changing the health insurance scheme at the ITU, as well as individual decisions implementing that service order.
Consideration 2
Extract:
[W]hen an internal appeal is tainted with a flaw – other than late submission – which prevents it from being considered as properly filed, it is for the appeals body, in the exercise of its duty of care, to enable the appellant to correct the appeal by granting her or him a reasonable period of time in which to do so (see Judgments 3943, under 5, and 3127, under 10)[.]
Reference(s)
ILOAT Judgment(s): 3127, 3943
Keywords:
duty of care; internal appeal;
Judgment 4015
126th Session, 2018
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to award him damages for the alleged leaking of confidential information concerning him.
Consideration 5
Extract:
The complainant argues that if the FAO had taken all reasonable efforts to ensure the confidentiality of his appeal and if the FAO had adequate procedures in place to guarantee strict confidentiality of information, the information at issue would not have ended up with the newspaper. This argument is fundamentally flawed. In the absence of any other evidence, the fact alone that the newspaper acquired some information about the complainant’s request for compensation does not prove negligence on the part of the FAO or that it breached its duty of care. Moreover, the complainant has not adduced any evidence that would support a finding of negligence or a breach of the FAO’s duty of care.
Keywords:
duty of care;
Judgment 4013
126th Session, 2018
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to investigate his harassment complaint in accordance with the applicable rules.
Considerations 9 and 11-13
Extract:
Contrary to the FAO’s assertions, it did not adhere to the rules applicable to the investigation of a harassment complaint provided in the Circular. It does not follow from the fact that the OIGI based its conclusions on the FAO’s definition of harassment in the Circular, that the investigation was conducted in accordance with the FAO’s rules. It is observed that a “preliminary review” as conducted by the WFP OIGI did not form part of the investigation process in the Circular. As well, in contrast with the OIGI’s process in which a recommendation is included in its report, the provisions in the Circular limit the Investigation Panel’s report to the Director of OHR to its findings of fact. Further, the fact that the Investigation Panel had conducted “preliminary reviews” in its consideration of several harassment complaints without objection; that professional investigators commonly do preliminary evaluations of these types of complaints; and that this approach is recognized in the FAO Guidelines for Internal Administrative Investigations by the Office of the Inspector-General and the WFP Manual does not absolve the FAO of its obligation to deal with these complaints in accordance with the procedure provided in its own rules.
However, according to the WFP OIGI report, the OIGI and the Director of OHR (FAO) met on two occasions prior to the start of the investigation to discuss “the scope of the preliminary review, as well as to request for information on staff members”. The FAO Inspector-General also attended the last of the two meetings. Thus, it is evident that from the outset, the FAO Director of OHR and the FAO Inspector-General were in agreement with a “preliminary review” of the harassment complaint, a process not contemplated in the Circular. This, coupled with the fact that it does not appear that the FAO and the OIGI engaged in any discussion about the investigation being conducted in accordance with the provisions in the Circular, shows a disregard on the part of the FAO of the obligation to follow its own rules.
Although the FAO breached its obligation to deal with the harassment complaint in accordance with the applicable rules in the Circular, the complainant has not established that he was prejudiced as a result of the FAO’s action. Moreover, his claim that because of his membership on the Investigation Panel and his role as President of the Association of Professionals he was “single[d] out” and denied the same right and procedure as would be granted to his colleagues is also rejected. His complaint was referred to the WFP because of the conflict of interest problem and for no other reason.
Returning to the internal appeal, the Appeals Committee majority observed that there was no evidence that “OIGI conducted the investigation in a different manner than the way an investigation is undertaken by the FAO Investigation Panel”, and concluded that the OIGI’s investigation was “undertaken in compliance with the applicable rules specified [in the preceding paragraph – the Circular and the Rules of Procedure of the FAO Investigation Panel]”. As this conclusion constitutes an error of law, the Director-General’s decision endorsing the majority opinion is tainted by the same error of law and will be set aside. The complainant is entitled to moral damages for the FAO’s breach of its duty of care in the amount of 1,000 euros. The complainant did not seek, by way of relief, that the matter be remitted to the FAO to enable further investigation to be conducted in accordance with applicable procedures.
Keywords:
duty of care; harassment; staff regulations and rules;
Consideration 8
Extract:
In support of its position, the FAO relies on Judgment 3065 where, in consideration 10, the Tribunal stated:
“[...] an accusation of harassment requires that ‘an international organisation both investigate the matter thoroughly and accord full due process and protection to the person accused’. Furthermore, ‘[i]ts duty to a person who makes a claim of harassment requires that the claim be investigated both promptly and thoroughly, that the facts be determined objectively and in their overall context [...], that the law be applied correctly, that due process be observed and that the person claiming, in good faith, to have been harassed not be stigmatised or victimised on that account [...]’ (see Judgment 2973, under 16, and the case law cited therein).”
However, as the Tribunal stated in Judgment 3365, under 26, it is also well settled in the case law that “when an official makes allegations of harassment, she or he is entitled to have them dealt with in accordance with the rules and procedures in force (see Judgment 2642, under 8)”. In the same consideration, the Tribunal held that “[i]f an organisation fails to do so, it breaches not only its own policies and rules, but also its duty of care towards the official”.
Reference(s)
ILOAT Judgment(s): 2973, 3065
Keywords:
duty of care; harassment;
Judgment 4012
126th Session, 2018
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to grant him compensation for the harm allegedly caused to him by the fact that emails that he considers to be defamatory were stored in a folder accessible to all users of the FAO’s IT network.
Consideration 3
Extract:
The emails at issue were communications between Ms T., a Legal Officer, and the complainant’s Division Director, new to the FAO, in which the latter’s managerial concerns in dealing with the complainant were addressed. It is observed that Ms T.’s communications with the Division Director formed part of her official functions that included providing background information and advice to managers. The emails were marked confidential and in the circumstances were, particularly having regard to their subject-matter, private communications. Additionally, there was no publication or deliberate dissemination of the information. However, the filing of confidential personnel information in a publicly accessible email folder constituted a breach of the Organization’s duty to maintain the confidentiality of a staff member’s personnel information. The complainant, however, did not suffer any damage because of this breach. Leaving aside the fact that the complainant did not submit any evidence whatsoever let alone evidence establishing damage to his reputation or otherwise, he contributed to the possibility of a staff member accidently seeing the emails by not divulging the location of the emails when asked by the Administration. As soon as the emails were located, they were immediately removed. Taking this into account, there will be no award of moral damages for the breach.
Keywords:
confidential evidence; duty of care; respect for dignity;
Judgment 3995
126th Session, 2018
International Fund for Agricultural Development
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the measures taken by IFAD following its investigation into his allegations of harassment.
Consideration 9
Extract:
According to the Tribunal’s case law, by virtue of the principle that an international organisation must provide its staff members with a safe and healthy working environment, it is liable for all injuries caused to a staff member by a supervisor when the victim is subjected to treatment that is an affront to her or his dignity (see, for example, Judgments 1609, under 16, 1875, under 32, 2706, under 5, or 3170, under 33).
Reference(s)
ILOAT Judgment(s): 1609, 1875, 2706, 3170
Keywords:
duty of care; duty to inform; good faith; organisation's duties; patere legem; respect for dignity;
Judgment 3994
126th Session, 2018
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges CERN’s refusal to recognise the illness from which she says she suffers as occupational.
Consideration 8
Extract:
While the Tribunal’s case law obliges international organisations to take appropriate measures to protect their officials’ health and safety (see Judgment 3689, under 5; see also Judgments 3025, under 2, and 2706, under 5), the measures requested must be reasonable and based on objective evidence of their necessity.
Reference(s)
ILOAT Judgment(s): 2706, 3025, 3689
Keywords:
duty of care;
Judgment 3972
125th Session, 2018
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to impose upon him the disciplinary measure of dismissal for misconduct.
Consideration 15
Extract:
While, in the present case, the Disciplinary Committee, but not the President when deciding initially to dismiss the complainant, did advert to the possibility that the complainant was suffering from a mental illness, it discounted entirely the possible nexus because the information available was insufficient. In circumstances such as the present, the President’s response to the complainant’s request for review was inadequate. The Tribunal concluded in Judgment 3887 that the EPO breached its duty of care towards the complainant in that case. So it is in this case as well. That duty of care would involve the EPO assessing whether the alleged misconduct can be entirely explained by the complainant’s mental illness, and also whether the complainant was entitled to benefits based on an invalidity stemming from his mental illness and perhaps his service with the EPO.
Reference(s)
ILOAT Judgment(s): 3887
Keywords:
disciplinary measure; duty of care; illness;
Judgment 3963
125th Session, 2018
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant alleges that the Organisation has breached its duty of care in relation to possible taxation of the invalidity allowance.
Consideration 2
Extract:
Having regard to the way in which the questions were formulated, the Organisation supplied answers which may be deemed adequate. The Tribunal therefore finds that, in the circumstances, the EPO honoured its obligation to provide information and its duty of care. Indeed, as the Tribunal observed in Judgment 3213, under 7, whilst international organisations have a duty of care towards their employees and must provide clear rules and regulations as well as clarifications of such when requested, they cannot be solely responsible for every situation stemming from a misunderstanding of those rules.
Reference(s)
ILOAT Judgment(s): 3213
Keywords:
duty of care; duty to inform; organisation's duties;
Judgment 3948
125th Session, 2018
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision not to renew her fixed-term contract.
Consideration 10
Extract:
The Tribunal [...] considers that IOM should have disclosed to the JARB the documents that it had in its possession, as they could have assisted it to determine whether the reason given for not renewing the complainant’s contract, budgetary constraints, was a valid and objective reason. The documents, appropriately redacted, should also have been disclosed to the complainant. Having not disclosed them, IOM breached due process as well as its duty of care to the complainant.
The rationale for the latter determination can be gleaned from the statements in Judgment 3586, considerations 16 to 20, which may be summarized as follows: in keeping with consistent case law of the Tribunal, a staff member of an international organization must, as a general rule, have access to all evidence on which an authority bases or intends to base its decision against her or him. In normal circumstances such evidence, which is peculiarly in the organization’s control, cannot be withheld on grounds of confidentiality unless there is some special case in which a higher interest stands in the way of the disclosure of certain documents. However, such disclosure may not be refused merely in order to strengthen the position of the Administration or one of its officers. The principle of equality of arms must be observed by ensuring that all parties to a case are provided with all of the materials used by an internal adjudicating body, the JARB in this case. The failure to disclose them constitutes a breach of due process, as it would render its examination of the case incomplete and prevent it from properly considering the facts. This would not only violate due process but also the organization’s duty of care causing the impugned decision to be set aside.
Keywords:
adversarial proceedings; confidential evidence; duty of care;
Judgment 3943
125th Session, 2018
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants seek a redefinition of their employment relationships.
Considerations 5 and 9
Extract:
The Tribunal considers that when an internal appeal is tainted with a flaw – other than late submission – which prevents it from being considered as properly filed, it is for the appeals body, in the exercise of its duty of care, to enable the complainant to correct the appeal by granting her or him a reasonable period of time in which to do so (for a similar case, see Judgment 3127, under 10).
[...]
In the particular circumstances of the case, and given the nature of the flaw that affected the complainants’ internal appeals, there is no reason to award them moral damages in respect of the unlawfulness of the impugned decisions or the delay in processing their appeals. Nor will they be awarded costs.
Keywords:
duty of care; internal appeal;
Judgment 3940
125th Session, 2018
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to abolish his post.
Consideration 6
Extract:
In Judgment 3376 [...] the Tribunal recalled that an organisation “that resorts to subcontractors, be they companies or individuals, must ensure that the contract it signs with them will not have an adverse impact on the situation of officials who are subject to the staff regulations and will not unjustifiably infringe the rights they enjoy under those regulations. The risk of such an infringement is particularly great in the case of long-term contractual outsourcing and in cases where the tasks involved are still partly performed concurrently by regular staff (see Judgment 2919 passim). In such cases the duty of care requires the organisation to provide the staff concerned with adequate information concerning the outsourcing procedures and their possible impact on their professional situation and to prevent any possible adverse impact thereon (see Judgments 2519, under 10, 1756, under 10(b), and 1780, under 6(a)).”
[...]
The lack of transparency noted by the Appeals Board is corroborated by the evidence on file, which shows that although the complainant contacted his supervisors on numerous occasions, they did not provide him with sufficient information as to the reasons for the outsourcing of the tasks that he performed and the way in which it would be achieved. Moreover, the evidence does not show that the Organization did its utmost to minimise the negative impact of the use of service contracts on the complainant’s status.
Reference(s)
ILOAT Judgment(s): 1756, 1780, 2519, 2919, 3376
Keywords:
duty of care; duty to inform; outsourcing;
Judgment 3929
125th Session, 2018
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to abolish her post and to terminate her appointment while she was on sick leave.
Consideration 13
Extract:
According to the Tribunal’s case law, an international organisation has a duty of care which, in relation to the exercise of the right of appeal, obliges the organisation to assist a staff member who is mistaken in the exercise of that right. If the staff member has mistakenly requested a review of a decision to the wrong authority, that authority must forward the request to the appropriate one (see Judgments 3754, under 11, and 2345, under 1).
Reference(s)
ILOAT Judgment(s): 2345, 3754
Keywords:
duty of care; internal appeal;
Judgment 3928
125th Session, 2018
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to abolish his post and to terminate his appointment while he was on sick leave.
Consideration 15
Extract:
It should also be noted that, in breach of the UPU’s duty of care and duty to protect the dignity of its staff members, the complainant was not even notified directly of the abolition of his post. He was instead informed, as all staff, via the publication of a corrigendum of January 2015 to internal memorandum No. 02/2015, stating, inter alia, that a “P3 Post (French Translation Service)” would be abolished (along with the other four posts). The Tribunal recalls that “[t]he decision to abolish a post must be communicated to the staff person occupying the post in a manner that safeguards that individual’s rights. These rights are safeguarded by giving proper notice of the decision, reasons for the decision and an opportunity to contest the decision. As well, subsequent to the decision there must be proper institutional support mechanisms in place to assist the staff member concerned in finding a new assignment” (see Judgment 3041, under 8).
Reference(s)
ILOAT Judgment(s): 3041
Keywords:
abolition of post; duty of care; duty to inform;
Consideration 14
Extract:
According to the Tribunal’s case law, an international organisation has a duty of care which, in relation to the exercise of the right of appeal, obliges the organisation to assist a staff member who is mistaken in the exercise of that right. If the staff member has mistakenly requested a review of a decision to the wrong authority, that authority must forward the request to the appropriate one (see Judgments 3754, under 11, and 2345, under 1).
Reference(s)
ILOAT Judgment(s): 2345, 3754
Keywords:
duty of care; internal appeal;
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