Cause of action (77,-666)
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Keywords: Cause of action
Total judgments found: 273
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Judgment 4397
131st Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to transfer her.
Considerations 7-8
Extract:
The Organisation challenges the receivability of the complaint insofar as the “reassignment” was based on the complainant’s wish to remain in Vienna. […]
The complaint is receivable. The fact that the EPO was attempting to satisfy the complainant’s wish to remain in Vienna does not prevent her from contesting the resulting decision by which she was transferred to the specific post […].
Keywords:
cause of action; receivability of the complaint;
Judgment 4396
131st Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to reimburse him the notary fees which he incurred for the certification of his signature on the annual declaration required for recipients of an invalidity allowance.
Consideration 8
Extract:
The Tribunal’s case law has it that a staff member who challenges an individual decision may, at the same time and in the same appeal, challenge the related underlying decision and that a staff member may, in challenging a decision that affects her or him directly, plead the unlawfulness of any general measure that affords the basis for it in law. A staff member may therefore impugn an administrative decision only if it directly affects her or him, but is not prevented from challenging the lawfulness of the general decision when impugning the implementing decision which generated their cause of action (see Judgment 3291, under 6 and 8).
Reference(s)
ILOAT Judgment(s): 3291
Keywords:
cause of action; general decision;
Judgment 4394
131st Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the decision deriving from the Administrative Council’s decision CA/D 2/15 to require the recipients of the new retirement pension for health reasons to cease performing gainful activities or employment or to refrain from performing such activities or employment.
Considerations 7-8
Extract:
As acknowledged in the 17 July letters to the complainants, the amendments introduced by CA/D 2/15 were aimed at changing the complainants’ status. Specifically, as from 1 January 2016 the complainants would be granted a retirement pension for health reasons and would not be allowed to carry out gainful activities or employment, which had been permitted under their previous status, and this change was contrary to their interests. As the Tribunal has said before, “there may be a cause of action even if there is no present injury: time may go by before the impugned decision causes actual injury. The necessary, yet sufficient, condition of a cause of action is a reasonable presumption that the decision will bring injury. The decision must have some present effect on the complainant’s position” (see Judgments 1712, consideration 10, 2632, consideration 10, and 3337, consideration 7). The Tribunal finds that the notification of the complainants’ status change contained in the 17 July letters entitled “Implementation of Administrative Council decision CA/D 2/15 dated 26 March 2015: transitional measures for 2015” was reasonably construed by the complainants as the implementation of the general decision, triggering the count towards the deadlines for filing their requests for review.
In light of the above, the Tribunal finds that the Appeals Committee erred in recommending to summarily dismiss the complainants’ internal appeals as “manifestly irreceivable” for failure to establish a cause of action and the President of the Office erred when he endorsed that recommendation.
Reference(s)
ILOAT Judgment(s): 1712, 2632, 3337
Keywords:
cause of action;
Judgment keywords
Keywords:
case sent back to organisation; cause of action; complaint allowed;
Judgment 4356
131st Session, 2021
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to place him on the shortlist for a position for which he had applied as a priority candidate.
Consideration 3
Extract:
The Tribunal has accepted that a staff member can challenge a selection process even if the position was ultimately not filled (see Judgment 4033), and that a flawed selection process can result in the loss of a valuable opportunity to be appointed (see Judgment 4098).
Reference(s)
ILOAT Judgment(s): 4033, 4098
Keywords:
cause of action; loss of opportunity; selection procedure;
Judgment 4347
131st Session, 2021
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision of the Director of PAHO to impose on him the disciplinary measure of reassignment with reduction in grade.
Consideration 28
Extract:
The complainant also submits that the decision is vitiated by an error of law, as the Board of Appeal was improperly composed and the appointment of a new Board of Appeal led to an egregious delay in the proceedings. The Tribunal finds that the composition of the Board of Appeal which reviewed his appeal was lawful and the delays in reconfiguring the Board of Appeal were not egregious. The length of the delay was principally determined by the complainant’s request to change the composition of the panel which was proposed to him on 26 May 2016. He requested the change as he objected to the proposal that the Board of Appeal members remain on the Board of Appeal beyond the expiry of their mandates, despite assurances that they had agreed to the extension of their appointments at the Organization’s request and with the knowledge and concurrence of the Staff Association. Therefore, the appeal was stayed, pending new elections for the Board of Appeal members nominated by the Staff Association. While it took a year to finalize the composition of the new panel, the Board of Appeal, once properly composed, rendered its preliminary report within three months and its final report within five months of receiving the Director’s 27 December 2017 decision. Moreover, the complainant has not provided convincing evidence of any negative effect on him caused by the delay in the proceedings before the Board of Appeal.
Keywords:
cause of action; delay; internal appeal;
Judgment 4342
131st Session, 2021
International Fund for Agricultural Development
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to select him for the position of Deputy General Counsel.
Consideration 7
Extract:
[T]he fact that the complainant did not raise issues or objections during the process is of no legal consequence. Steps were taken in the selection process before the decision was made not to select the complainant and ultimately the decision to appoint another person. The complainant could not directly or immediately challenge those preliminary steps legally (see, for example, Judgment 3876, consideration 5). Moreover it could scarcely be expected that the complainant should run the risk of compromising his candidature by complaining about the conduct of those engaged in the selection process or otherwise complaining about the process at the time his application was being assessed.
Reference(s)
ILOAT Judgment(s): 3876
Keywords:
cause of action; selection procedure;
Judgment 4341
131st Session, 2021
International Fund for Agricultural Development
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to shortlist him for the position of General Counsel.
Considerations 4-6
Extract:
The complainant argues that the recommendation of the Board was based on grossly inadequate reasoning, referring to Judgment 3995, consideration 4. The Tribunal accepts this is correct. It is to be recalled that the Board said it would not consider the complainant’s case on the merits because he had participated willingly and without objection in the selection process along the way. This led the Board to conclude, for no discernible reason, the complainant did not have a legally protected interest in the matter. The case law of the Tribunal repeatedly establishes that a staff member who has been unsuccessful in a competition has the legal right to challenge the lawfulness of the competition (see Judgments 1832, consideration 3(b)(2), and 3449, consideration 2) and internal appeals bodies have a corresponding duty to consider the challenge (see, for example, Judgment 3590, consideration 2). [...]
Moreover the fact that the complainant did not raise issues or objections during the process is of no legal consequence. Steps were taken in the selection process before the decision was made not to shortlist the complainant and ultimately the decision to appoint another person. The complainant could not directly or immediately challenge those steps legally (see, for example, Judgment 3876, consideration 5). Moreover it could scarcely be expected that the complainant should run the risk of compromising his candidature by complaining about the conduct of those engaged in the selection process or otherwise complaining about the process at the time his application was being assessed.
The approach of the Board involved an error of law and its effective adoption by the President is tainted by the same error (see Judgment 3490, consideration 18). IFAD defends the President’s approach by saying firstly, he had no power to refer the matter back to the Board and secondly and in any event the President “appraised the [Board]’s Report and recommendations in light of all the documentation he had at his disposal in relation to the [c]omplainant’s appeal”. If the President did not have power to refer the matter back to the Board, he had an obligation to motivate his decision to dismiss the appeal in the face of no motivation of substance from the Board itself. The President did not do so.
Reference(s)
ILOAT Judgment(s): 1832, 3449, 3490, 3590, 3876, 3995
Keywords:
cause of action; internal appeals body; motivation; motivation of final decision; selection procedure;
Judgment 4337
131st Session, 2021
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the rejection of her requests for reinstatement.
Judgment keywords
Keywords:
cause of action; complaint dismissed; former official; reinstatement;
Considerations 6-7
Extract:
Article II, paragraph 5, of the Tribunal’s Statute states that the “Tribunal shall [...] be competent to hear complaints alleging non-observance, in substance or in form, of the terms of appointment of officials and of provisions of the Staff Regulations”. As the Tribunal observed in Judgment 3426, consideration 16:
“Framed another way, Article II requires that a complaint must reveal a cause of action and that the impugned decision is one which is subject to challenge. Under Article II, two thresholds must be met for there to be a cause of action. First, the complainant must be an official of the defendant organization or other person described in Article II, paragraph 6. Second, Article II, paragraph 5, requires that a complaint ‘must relate to [a] decision involving the terms of a staff member’s appointment or the provisions of the Staff Regulations’ [...]” (Citation omitted.)
As the Tribunal stated recently in Judgment 4317, consideration 3, “[i]f [a] complainant does not allege the violation of rights which the Tribunal is called upon to protect under the terms of its Statute, the Tribunal cannot adjudicate on the complaint”.
In her submissions, the complainant did not identify any right to reinstatement accruing from her former employment. Indeed, an official who resigns does not have the right to be later reinstated. As well, she did not allege that the rejection of her request for reinstatement violated any terms of her former employment. The fact that she contrived and received a final decision from the Organization rejecting her unfounded request is not sufficient to make her complaint receivable before the Tribunal. As the complaint does not disclose a cause of action as required in Article II of the Statute, the Tribunal cannot adjudicate on the complaint and it will be dismissed.
Reference(s)
ILOAT Judgment(s): 3426, 4317
Keywords:
cause of action; receivability of the complaint;
Judgment 4329
130th Session, 2020
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, a former official of the EPO, requested the President of the Office to provide him with a written declaration affirming that he was not a target of certain practices alleged in press articles.
Judgment keywords
Keywords:
cause of action; complaint dismissed; summary procedure;
Consideration 6
Extract:
Pursuant to Article II, paragraph 5, of its Statute the Tribunal is competent to hear complaints alleging “non-observance, in substance or in form, of the terms of appointment of officials and of provisions of the Staff Regulations”.
The complainant requested the President of the Office to provide him with a written declaration affirming that he was not a target of certain practices alleged in press articles. There is no obligation in the Service Regulations for the President to issue such a declaration and therefore the decision not to grant such a request does not amount to “non-observance, in substance or in form, of the terms of appointment of officials and of provisions of the Staff Regulations”.
Similarly, the complainant did not affirm that his home equipment was illegally monitored. In fact, his allegation that his equipment at home was monitored by the EPO is purely hypothetical and he asks that this hypothetical violation should cease. Again, he does not allege “non-observance, in substance or in form, of the terms of appointment of officials and of provisions of the Staff Regulations”.
Keywords:
cause of action; competence of tribunal;
Judgment 4322
130th Session, 2020
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants contest the appointments of members of the General Advisory Committee for 2014.
Judgment keywords
Keywords:
cause of action; complaint dismissed; member of an internal body;
Considerations 7-9
Extract:
The Tribunal considers that the present case raises a threshold issue that needs to be resolved: whether the complainants’ status as members of the GAC gives them a cause of action to challenge the appointment of other GAC members.
[...]
Although the parties did not raise the question before the Tribunal, the Tribunal must, in this case, address the preliminary issue of the complainants’ cause of action of its own motion. Indeed, the existence of a cause of action is a necessary precondition for the Tribunal’s competence. If a complainant does not allege a violation of rights which the Tribunal is called upon to protect under the terms of its Statute, the Tribunal cannot adjudicate on the complaint. The Tribunal’s case law connects this issue to the issue of receivability (see, for example, Judgments 3426, under 16, 3428, under 11, and 3642, under 11).
Article II, paragraph 5, of the Tribunal’s Statute provides that the Tribunal shall be competent to hear complaints alleging non-observance, in substance or in form, of the terms of appointment of officials and of provisions of the staff regulations applicable to them. In accordance with this provision, a member of an advisory body within an international organization, acting in that capacity, may only raise before the Tribunal defects which have affected her/his prerogatives as a member of the body as defined by the internal provisions (see, for example, Judgment 3921, under 6 and 9). The composition of an advisory body does not, except in cases involving manifest perversity, affect the prerogatives of that body. In the present case, the complainants do not specifically allege any non-observance of their terms of appointment or the rules applicable to the GAC. Moreover, the appointment of the Administration’s representatives as members of the GAC does not show any manifest perversity. The impugned decision does not have any legal effect on the complainants’ status (see Judgments 2952, under 3, and 3198, under 13).
Reference(s)
ILOAT Judgment(s): 2952, 3198, 3426, 3428, 3642, 3921
Keywords:
cause of action; member of an internal body;
Judgment 4320
130th Session, 2020
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reject her application for a vacant post on the grounds that, as the holder of a fixed-term contract, she was not eligible to participate in the competition process.
Judgment keywords
Keywords:
cause of action; complaint dismissed; selection procedure;
Judgment 4317
130th Session, 2020
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, in his capacity as a member of the Selection Board, challenges the decision not to allow a staff member holding a fixed-term contract to compete for a permanent post.
Judgment keywords
Keywords:
cause of action; competition; complaint dismissed;
Considerations 4-5
Extract:
[I]t is worth noting that after the end of the written procedure in this case, the Tribunal adopted Judgment 3557, in a summary procedure, where it found that it was clear that the complainant, who was likewise acting in his capacity as a member of a Selection Board, did not have standing to challenge the outcome of the selection procedure. The same reasoning must be applied in the present case as “[the complainant] does not specifically allege any non-observance of his terms of appointment as required by Article II, paragraph 5, of the Tribunal’s Statute”.
As a matter of general principle, a complainant must, in order to raise a cause of action, allege and demonstrate arguably that the impugned administrative decision caused injury to her or him or was liable to cause injury (see, for example, Judgments 3921, consideration 6, and 3168, consideration 9). In accordance with this case law, a member of a board within an international organization, acting in this capacity, may only raise with the Tribunal the defects that have affected her or his prerogatives as a member of the board as defined by the internal provisions (see above-mentioned Judgment 3921, consideration 9).
In light of the above, the complaint is irreceivable in its entirety and must be dismissed.
Reference(s)
ILOAT Judgment(s): 3168, 3557, 3921
Keywords:
cause of action; locus standi; member of an internal body;
Considerations 2-3
Extract:
The Tribunal considers that the present case raises two connected threshold issues which need to be resolved: a) whether the complainant’s cause of action can be considered by the Tribunal even though this issue has not been raised by the parties; b) if the answer is yes, whether the complainant has the requisite standing to bring this complaint.
The Tribunal’s answer is affirmative to the first question and negative to the second one.
The Tribunal must, in this case, raise the preliminary issue of the complainant’s cause of action of its own motion, because the existence of a cause of action is a necessary pre-condition for the Tribunal’s competence. If the complainant does not allege the violation of rights which the Tribunal is called upon to protect under the terms of its Statute, the Tribunal cannot adjudicate on the complaint. The Tribunal’s case law connects this issue to the issue of receivability (see Judgments 3426, consideration 16, 3428, consideration 11, 3642, consideration 11, 3648, consideration 5, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 3426, 3428, 3642, 3648
Keywords:
cause of action; receivability of the complaint;
Judgment 4303
130th Session, 2020
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the amount of compensation awarded for the unlawful abolition of her post.
Consideration 4
Extract:
[T]he impugned decision was based on an affirmative finding that the decision to abolish the complainant’s post was tainted by illegality including prejudice towards the complainant. In a case such as the present, a challenge to a final administrative decision is a challenge to the decision itself and at least ordinarily not the reasons on which the decision is based (see, for example, Judgment 3997, consideration 7), nor to any alleged procedural flaws leading to a decision which vindicates the complainant’s grievance.
Reference(s)
ILOAT Judgment(s): 3997
Keywords:
cause of action; impugned decision;
Judgment 4296
130th Session, 2020
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant requests that allegedly offensive remarks be removed from an investigation report.
Judgment keywords
Keywords:
cause of action; complaint dismissed; harassment; impugned decision; investigation report;
Consideration 6
Extract:
Article II, paragraph 5, of the Tribunal’s Statute relevantly states that the Tribunal shall be competent to hear complaints alleging non-observance, in substance or in form, of the terms of an official’s appointment and of the provisions of the Staff Regulations. In Judgment 4145, consideration 5, the Tribunal recalled that Article II has been interpreted to require that for a complaint to be receivable the staff member must have a cause of action and the impugned decision must be one that, by its nature, is subject to challenge. The Tribunal reiterated, in Judgment 4007, consideration 4, that “for there to be a cause of action a complainant must demonstrate that the contested administrative action caused injury to the complainant’s health, finances or otherwise or that it is liable to cause injury” and had stated, additionally, in Judgment 3337, consideration 7, that the decision must have some present effect on the complainant’s position.
Inasmuch as the Director-General accepted the Investigative Team’s recommendation to dismiss the harassment complaint against the complainant and closed the case, the decision which the complainant challenges had no present effect on his position. Accordingly, the complaint does not disclose a cause of action and will be dismissed.
Reference(s)
ILOAT Judgment(s): 3337, 4007, 4145
Keywords:
cause of action; impugned decision;
Judgment 4295
130th Session, 2020
European Molecular Biology Laboratory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges a finding made in the decision not to impose a disciplinary measure against him.
Considerations 6-8
Extract:
[A]s the Tribunal reiterated in Judgment 4145, consideration 5, Article II of the Tribunal’s Statute requires that “for a complaint to be receivable the staff member must have a cause of action and the impugned decision must be one that, by its nature, is subject to challenge” (see also Judgment 3426, consideration 16).
In his pleadings, the complainant stresses that in his appeal he only challenged “that aspect of the decision that found he had made a secret recording”. It is evident and not disputed that the complainant takes the position that the statement in section II(h) of the 8 May 2017 letter forms part of the decision articulated in that letter under the heading “Decision”. This position is flawed as it disregards the distinction between a finding of fact and a decision. As the Tribunal reiterated in Judgment 3861, consideration 5, and the cases cited therein, “the term ‘decision’ means an act by an officer of an organisation which has a legal effect”. A finding of fact, however, forms part of the reasons articulated in arriving at the decision. In Judgment 3997, consideration 7, the Tribunal stated that “the Tribunal’s jurisdiction is a challenge to a final decision with operative legal effect and not a challenge to the reasons underpinning that decision.” The Tribunal added, as consistently held in the case law, that “[o]bviously if there is a final decision with an operative legal effect then a challenge to that decision can also impugn the reasoning leading to it”.
The 8 May 2017 letter was divided into three sections: Procedure, Considerations and Decision. It is noted that the statement in section II(h), at issue in this proceeding, was one of the ten considerations in the section under the heading “Considerations”. On this basis alone, it is evident that the statement was one of the considerations underpinning the decision and not a decision. Moreover, on the face of it, it is clear that the statement “there is evidence that the recording took place” is a finding of fact and not a decision as contemplated in Article II of the Statute of the Tribunal. As for the decision itself, it was beneficial to him and, in that respect, he has no cause of action. It follows that the complaint is irreceivable and will be dismissed.
Reference(s)
ILOAT Judgment(s): 3426, 3861, 3997, 4145
Keywords:
cause of action; decision; impugned decision;
Judgment keywords
Keywords:
cause of action; complaint dismissed; impugned decision; misconduct;
Judgment 4287
130th Session, 2020
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision lifting his non-disciplinary suspension from duties.
Judgment keywords
Keywords:
cause of action; complaint dismissed; suspension;
Consideration 5
Extract:
The decision to lift the complainant’s suspension (as opposed to the decision to suspend him) did not involve non-observance of any Staff Regulation or the terms of his appointment. Indeed it was a decision which was beneficial to him and, in that respect, he has no cause of action to contest it.
Keywords:
cause of action; impugned decision;
Judgment 4277
130th Session, 2020
International Bureau of Weights and Measures
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who has been receiving a retirement pension since 1 December 2017, impugns her “pay slip” for January 2018.
Consideration 3
Extract:
As the Tribunal recalled in Judgment 3736, under 3, “according to the case law, a general decision that requires individual implementation cannot be impugned; it is only the individual implementing decisions which may be challenged” (see Judgments 3628, under 4, and the case law cited therein, 4008, under 3, and 4119, under 4). Accordingly, the lawfulness of the general decision may only be challenged in the context of a challenge to the individual decisions.
Reference(s)
ILOAT Judgment(s): 3628, 3736, 4008, 4119
Keywords:
cause of action; general decision; impugned decision;
Judgment 4276
130th Session, 2020
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his performance appraisal under the new merit recognition system established following the 2015 five-yearly review.
Consideration 6
Extract:
The Tribunal’s case law has it that a general decision which requires individual implementation cannot be challenged directly; it is only the individual implementing decisions which may be challenged (see Judgments 3628, under 4, 3736, under 3, 4008, under 3, and 4119, under 4, and the case law cited therein). The lawfulness of the general decision may only be challenged as part of the challenge to the individual decision.
Reference(s)
ILOAT Judgment(s): 3628, 3736, 4008, 4119
Keywords:
cause of action; general decision; impugned decision;
Judgment 4257
129th Session, 2020
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for 2014.
Considerations 7-8
Extract:
Allied to these arguments is an argument of the EPO that the complainant is limited as to the subject matter he can challenge having regard to the fact that Article 110a of the Service Regulations introduced by CA/D 10/14 and Circular No. 366 are general decisions which are not amenable to challenge unless and until a decision is made detrimentally affecting the complainant.
The last-mentioned argument of the EPO is founded on settled case law. The EPO cites Judgment 3291, consideration 8. A more recent illustration is Judgment 4075, consideration 4. However in the present case Article 110a of the Service Regulations introduced by CA/D 10/14 and Circular No. 366 have been applied in an individual decision affecting the complainant, namely the application of the new procedures to the review of his grievances about the terms of the 2014 staff report and the involvement in its preparation of individuals he alleges were not impartial. Accordingly, the complainant can challenge the lawfulness of those general decisions.
Reference(s)
ILOAT Judgment(s): 3291, 4075
Keywords:
cause of action; general decision; performance evaluation;
Judgment 4249
129th Session, 2020
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants contest the implementation of the 2013 comprehensive local salary survey for New Delhi, India.
Consideration 5
Extract:
It is unnecessary for the Tribunal to address all the arguments raised by the parties or to embark on an analysis of the methodology and associated issues attending the 2013 survey. That is because the complainants, in substance, succeeded in their challenge to the decision taken on or about 30 October 2014 to implement the results of the 2013 local salary survey[.]
Keywords:
cause of action; salary;
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