Cause of action (77,-666)
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Keywords: Cause of action
Total judgments found: 273
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Judgment 4239
129th Session, 2020
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate her appointment for health reasons and claims that the compensation she received for her service-incurred injury is grossly inadequate.
Considerations 14-15
Extract:
The Tribunal’s case law is settled on what constitutes a cause of action based on negligence. The cause of action contains several elements (see, for example, Judgment 3733, consideration 12). The first is that the organisation has failed to take reasonable steps to prevent a foreseeable risk of injury. The second is that liability in negligence is occasioned when the failure to take such steps causes an injury that was foreseeable. As noted in Judgment 3215, consideration 12, the word “injury” in this context is not used in any technical, legal or medical sense. Equally apt and often used is the word “damage”, which may be physical (including psychological), financial or, as is often the case, both. In the context of employment with an international organisation, physical damage or injury is more likely to be foundational to the claim though the damage could well be, as is alleged in this case, consequential financial damage occasioned by loss of earning capacity flowing from the physical injury.
However, another essential element of the cause of action is that the negligent act or omission caused the damage. That is to say, there must be a causal link between the conduct complained of and the damage suffered. Moreover, the person seeking damages for negligence bears the burden of establishing the factual foundation on which the claim is based (see, for example, Judgment 3215, consideration 12).
Reference(s)
ILOAT Judgment(s): 3215, 3733
Keywords:
cause of action; negligence;
Judgment 4236
129th Session, 2020
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the results of the comprehensive local salary survey of 2013 for New Delhi, India.
Considerations 3-4
Extract:
Both in their briefs and in the common rejoinder, the complainants refer to several earlier judgments of the Tribunal, namely Judgments 522, 663, 1618 and 2244 in support of the contention that the complaints are receivable. The Director-General relied on Judgment 3427 in his letter of 5 September 2017 and WHO relies in its pleas on Judgments 3736, 3921 and 3931 to argue the complaints are not receivable. Certainly the contemporary case law of the Tribunal supports the argument of WHO. It is sufficient to refer to Judgment 3931. The circumstances considered in that judgment align almost completely with the circumstances in this matter. The Tribunal said:
“3. [...] The result of the impugned decision was that the salaries of staff who had been recruited before 1 November 2014 would be frozen and staff recruited after that date would receive salaries under a new salary scale. All the complainants were recruited before 1 November 2014. An aspect of the Organization’s argument is that the freezing of salaries results in the continued payment of pre-existing salaries with no injurious effect. However, an argument to the same effect in relation to a salary freeze was rejected by the Tribunal in Judgment 3740, consideration 11. It is unnecessary to repeat the analysis that, with one important qualification, is apt to apply in the present case. The qualification is this. In the case leading to Judgment 3740 the complainants lodged internal appeals against ‘the individual administrative decisions to apply to [each complainant] the statutory decision consisting of the revision of the remuneration of the [General Service category] Staff stationed in Rome’ as reflected in their respective February 2013 pay slips. Challenging a pay slip is an orthodox and accepted mechanism whereby an individual staff member can challenge a general decision as and when it is implemented in a way that affects or is likely to affect that individual staff member.
4. In the present case, the complainants’ causes of action are not based on pay slips. They seek to challenge the general decision embodied in the Administrative Order of 1 October 2014 vide Dossier 2-1 New Delhi. They cannot do so. The distinction between challenging a general decision and challenging the implementation of the general decision as applied to an individual staff member is not a barren technical point to frustrate individual staff members from pursuing their rights or protecting their interests. It is a distinction rooted in the nature and extent of the jurisdiction of the Tribunal conferred by the Tribunal’s Statute. The Tribunal must act within the limits established by the Statute. There are many statements in the Tribunal’s case law about the nature of this jurisdiction and its limits. One example of a comparatively recent discussion of those limits and how they arise from the Statute is found in Judgment 3642, consideration 11. As the Tribunal observed in Judgment 3760, consideration 6: ‘[t]he jurisdiction of the Tribunal is, under the Statute construed as a whole, concerned with the vindication or enforcement of individual rights (see, for example, Judgment 3642, under 11).’”
It bears repeating that the need to challenge an individual decision is not a barren technical point to frustrate individual staff members from pursuing their rights or protecting their interests but rather arises from the nature of the Tribunal’s jurisdiction. For example, in the present case, the relief the complainants seek includes setting aside the decision of the Director-General dated 5 September 2017 and rescinding the results of the 2013 salary survey as announced in the email of 7 October 2014. But orders of this type would apply to all staff affected by both the decision of 5 September 2017 and the email of 7 October 2014 irrespective of whether those staff agreed to or supported that outcome.
Reference(s)
ILOAT Judgment(s): 522, 663, 1618, 2244, 3427, 3642, 3736, 3740, 3760, 3921, 3931
Keywords:
cause of action; general decision; receivability of the complaint; salary;
Judgment 4214
129th Session, 2020
Energy Charter Conference
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant filed an application for execution of Judgment 4008.
Judgment keywords
Keywords:
application for execution; cause of action; complaint dismissed; selection procedure;
Consideration 5
Extract:
[T]je complainant, being no longer a staff member, could not have applied in response to a new vacancy notice of the same kind [an "internal selection procedure]. Accordingly, by refraining from publishing such a notice and starting a new recruitment procedure, the organisation did not render the judgment ineffective.
Keywords:
cause of action; selection procedure;
Judgment 4194
128th Session, 2019
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the refusal to consult them concerning the use of external contractors.
Judgment keywords
Keywords:
cause of action; competence of tribunal; complaint dismissed; en banc review; outsourcing; plenary judgment; staff representative;
Considerations 7-9
Extract:
Each staff member of an international organisation has a right to freely associate and the organisation has a corresponding duty to respect that right. This is a necessary incident of their employment (see, for example, Judgment 911, consideration 3). On the assumption that, as an incident of freedom of association, an organisation has a duty to meet or satisfy a staff representative’s legitimate request for information as an element of a broader obligation to consult (see, for example, Judgment 2919, consideration 15), and fails to do so, then a staff representative would, in that individual capacity and on this assumption, have a cause of action to enforce that duty.
There is no issue that, at the time these complaints were filed, each of the complainants had ceased being a member of the Munich Staff Committee even if one or a number may have held another office as a staff representative. Thus, when the proceedings were commenced in the Tribunal, the foundation of their cause of action had been removed. Their complaints are irreceivable.
This is not a barren technical conclusion. If their complaints were receivable, the merits of the case and the grant of relief would depend on the complainants demonstrating an ongoing right to be provided with the information and a right, if it existed, to continue to require the EPO to do what had been earlier requested. An immediate and probably insuperable problem would arise concerning relief if the complainants were able to establish, on the merits, they had been and were entitled to some or all of the information they had sought or had a right to request that certain things be done. But as they are no longer members of the Munich Staff Committee, they are not now entitled to any information of the type sought in the letter of 17 September 2009 nor to assert a right that the EPO do certain things. However this conclusion is not a barrier, more generally, to the enforcement of a right a member of a staff committee may have to be provided with information or a right to require the organisation to act in circumstances where the membership of the committee fluctuates over time. That is because when a staff representative has asserted a right arising from that status, the assertion or vindication of that right in proceedings before the Tribunal can be pursued by a newly elected staff representative as a “successor in title” (see Judgment 3465, consideration 3).
That would ordinarily involve the relevant committee approving the new staff representative assuming the role of the former staff representative. If approval was given then all steps taken by the former staff representative could be treated as steps taken by the new staff representative. In this way, steps taken by the former staff representative to pursue the grievance by way of internal appeal can be treated as steps taken by the new staff representative. The prosecution of a complaint in the Tribunal by the new staff representative would not be defeated by an argument that the new staff representative had not exhausted internal means of redress. She or he would have done so vicariously because of the actions of the former staff representative.
Reference(s)
ILOAT Judgment(s): 911, 2919, 3465
Keywords:
cause of action; duty to inform; freedom of association; internal remedies exhausted; ratione personae; staff representative;
Judgment 4161
128th Session, 2019
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the validity of a settlement agreement.
Consideration 5
Extract:
WIPO challenges the complaint’s receivability secondly on the grounds that, by signing the settlement agreement, the complainant waived any right to challenge it.
However, since the complainant submits that he entered into that agreement under pressure which invalidated his consent, this question of receivability is, in this case, inseparable from the merits of the case (see Judgments 3424, consideration 12, and 4072, consideration 4). Indeed, the decision on the objection to receivability depends on the legal validity of the settlement agreement, which makes it necessary to consider the complainant’s pleas on the merits (for a similar approach, see Judgments 3610, consideration 6, and 3750, consideration 5).
Reference(s)
ILOAT Judgment(s): 3424, 3610, 3750, 4072
Keywords:
amicable settlement; cause of action; duress; receivability of the complaint;
Judgment 4145
128th Session, 2019
European Molecular Biology Laboratory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to transfer one of his subordinates to another team.
Judgment keywords
Keywords:
cause of action; complaint dismissed; receivability of the complaint;
Consideration 5
Extract:
The complainant’s assertion that as the decision “directly adversely affected” him and caused him injury, he has the requisite standing as stated in the case law to bring the present complaint is also unfounded. Article II of the Tribunal’s Statute 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. As the Tribunal explained in Judgment 3426, consideration 16, in addition to the requirement that the complainant must be an official of the defendant organization or other person as provided in paragraph 6 of the Article, 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”. In Judgment 4048, consideration 5, the Tribunal elaborated that “to invoke the Tribunal’s jurisdiction, it must be a decision adversely affecting the complainant concerning either rights, privileges, obligations or duties arising under the provisions of staff regulations or the complainant’s terms of appointment” and that “[t]he complaint must allege non-observance of either or both (see Article II of the Tribunal’s Statute)”. As the complaint does not relate to a decision involving the complainant’s terms of appointment or the provisions of the EMBL’s Staff Rules and Regulations, it does not disclose a cause of action and is irreceivable.
Reference(s)
ILOAT Judgment(s): 3426, 4048
Keywords:
cause of action; competence of tribunal; receivability of the complaint; receivability ratione materiae;
Judgment 4120
127th Session, 2019
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to communicate to him an investigation report concerning the payment of school fees to another employee.
Consideration 6
Extract:
Staff representatives have a legitimate and important role in the functioning of international organisations. However there are limits to that role, at least as may involve rights enforceable in proceedings in the Tribunal. In its reasoning the IAC referred to Judgment 2919 of this Tribunal in support of a widely cast role for staff representatives. However, the effect of that judgment may have been misunderstood and, in any event, the Tribunal has recently indicated that Judgment 2919, if read too widely, went beyond the scope of the Tribunal’s established jurisprudence (see Judgment 3515, consideration 3). In the present case, whether Article 120(a) of the Service Regulations had been applied correctly or incorrectly to the individual the subject of the internal audit was not a matter in respect of which the complainant had an interest capable of being pursued in a complaint to this Tribunal. Nor did the complainant have an enforceable right to obtain the results of the internal audit. Accordingly the complainant has no cause of action and his complaint in the Tribunal is irreceivable (see Judgment 3426, consideration 16). Thus, the complaint should be dismissed.
Reference(s)
ILOAT Judgment(s): 2919, 3426, 3515
Keywords:
cause of action; locus standi; no cause of action; receivability of the complaint; staff representative;
Judgment 4119
127th Session, 2019
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision of the President of the Office to amend the wording of a circular in respect of the age limit for the payment of a dependants’ allowance.
Consideration 4
Extract:
The Tribunal’s case law consistently holds that a member of staff cannot challenge, by way of a complaint in the Tribunal, a general decision unless and until it is applied to that staff member with adverse legal consequences (see Judgment 4016, consideration 5, and the case law cited therein). That case law is rooted in the provisions of the Tribunal’s Statute. The Tribunal’s jurisdiction is to deal with disputes concerning, relevantly, the alleged non-observance of the Staff Regulations or of the official’s terms of appointment. In a case such as the present there would have been, at least arguably, a non-observance of the Service Regulations at the moment the complainant was not paid the allowance because of the age of his children. That might have been so because, amongst other reasons, the amendment was not lawfully made or the Service Regulations, properly construed, conferred the allowance beyond the time identified in the amended Circular. However before the payment of the allowance ceased, no issue would arise about the non-observance of the Service Regulations. In the result, this complaint is irreceivable and will be dismissed.
Reference(s)
ILOAT Judgment(s): 4016
Keywords:
allowance; cause of action; general decision; individual decision; receivability of the complaint;
Judgment 4104
127th Session, 2019
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to deny her request for the issuance of a fixed-term project-based contract for a member of her team.
Consideration 3
Extract:
The complaint is partially irreceivable. With regard to the claims to set aside the [impugned] decisions, the Tribunal finds that those decisions do not adversely affect the complainant directly, nor do they fall under the provisions of Article II of the Statute of the Tribunal. The Director’s rejection of the complainant’s request for the creation of a fixed-term project-based contract does not fall under the provisions of Article II of the Statute in that the present complaint does not address the non-observance, in substance or in form, of the terms of her appointment, nor does it address a violation of the Staff Regulations (see Judgment 4048, under 5). It is not enough that the complainant submits that she would have been in a more favourable work situation if the Director had approved her request. The interest alleged by the complainant is not a personal one; she essentially contests the violation of the general interest in the efficiency or proper conduct of the Administration, which is not subject to challenge under the Statute of the Tribunal.
Reference(s)
ILOAT Judgment(s): 4048
Keywords:
administrative decision; cause of action; competence of tribunal; impugned decision; ratione materiae;
Judgment 4099
127th Session, 2019
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to abolish her position.
Consideration 7
Extract:
[T]he complainant [...] has no cause of action to challenge [the appointment of the incumbent] since, according to WHO’s undisputed submission, she did not apply for the post concerned.
Keywords:
cause of action;
Judgment 4096
127th Session, 2019
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the failure to act on his request to update his terms of reference and the subsequent failure to take interim measures to protect him from harassment and retaliation by his supervisors.
Consideration 8
Extract:
The Tribunal considers that the impugned decision was in favour of the complainant, since it confirmed the Regional Director’s order to initiate two procedures as requested by the complainant. Accordingly, the complainant had to await the outcome of those procedures and, if not satisfied, he had to appeal internally, in accordance with the Organization’s rules, against the decisions which concluded those procedures. In light of the above, he did not have a cause of action to challenge the impugned decision.
Keywords:
cause of action;
Judgment 4087
127th Session, 2019
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the validity of a competition procedure in which he took part and the lawfulness of the ensuing appointment.
Considerations 4 & 6
Extract:
The Director General’s decision to dismiss the complainant’s appeal for lack of a cause of action was based on the fact that the complainant “did not meet the requirements of the post (in terms of the minimum number of years of extensive professional experience required)”.
The Tribunal finds this reason to be well founded. [...]
The Director General was therefore right to consider that the complainant did not meet the condition of minimum length of professional experience stipulated in the vacancy announcement. Therefore, even though he was admitted to the competition, through an error on the part of the Organization, the complainant was not, in fact, eligible for appointment to the post in question.
Keywords:
cause of action; selection procedure; vacancy notice;
Consideration 7
Extract:
In accordance with the Tribunal’s well-established case law, an official has no cause of action to challenge the decision to appoint another official to a post if she or he is not eligible for appointment to that post (see, for example, Judgments 2832, consideration 8, and 3644, consideration 7). In view of the complainant’s lack of a cause of action, all other pleas that he raises against the impugned decision are of no avail. [...]
Reference(s)
ILOAT Judgment(s): 2832, 3644
Keywords:
cause of action; loss of opportunity; selection procedure; vacancy notice;
Judgment 4070
127th Session, 2019
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to select her for a position for which she had applied.
Consideration 4
Extract:
The Tribunal holds that the complainant’s admission that she did not meet the requirements for the subject post means that she has no cause of action to challenge the shortlisting of the selected candidate or his final selection to fill the contested post. The complaint is therefore unfounded and will be dismissed.
Keywords:
cause of action; competition; selection procedure;
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 3
Extract:
Consistent precedent has it that “[a]s a matter of law, a claim is moot when there is no longer a live controversy. Whether or not there is a live controversy is a matter to be determined by the Tribunal” (see, for example, Judgment 2856, under 5). As a result of the reinstatement of the complainant’s firearm authorisation, the impugned decision is no longer operative and, consequently, the complainant’s claim for the reversal of “the decision to temporarily remove [his] authority to carry a firearm or, in case this cannot be granted, reinstate [his] authorisation to carry a firearm” has been overtaken by the 22 February 2017 decision. The fact that the impugned decision is no longer in force, however, does not resolve the other live issues between the parties concerning the lawfulness of that decision and the consequences of that decision for which the complainant claims moral damages.
Reference(s)
ILOAT Judgment(s): 2856
Keywords:
cause of action; claim moot; complaint; receivability of the complaint;
Judgment 4052
126th Session, 2018
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to subject him to disciplinary proceedings after his separation from the EPO and to impose upon him the disciplinary measure of a reduction by one third in the amount of his retirement pension.
Consideration 10
Extract:
The Tribunal finds that inasmuch as the impugned decision is a decision that is adverse to the complainant, he has a cause of action in the present case.
Keywords:
cause of action;
Judgment 4018
126th Session, 2018
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision no longer to pay him an expatriation allowance.
Consideration 17
Extract:
The complainant asks the Tribunal to rule that, should the various sums awarded to him by this judgment be subject to national taxation, he would be entitled to a refund of the tax paid from Eurocontrol. However, in the absence of a present cause of action in this respect, this claim must be dismissed as irreceivable (see, for example, Judgments 3255, under 15, or 3424, under 15).
Reference(s)
ILOAT Judgment(s): 3255, 3424
Keywords:
cause of action; tax;
Judgment 4016
126th Session, 2018
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision not to extend his appointment beyond the mandatory retirement age.
Consideration 5
Extract:
Eurocontrol’s objections to receivability are unfounded. The complainant was directly and immediately adversely affected by the Director General’s decision that did not allow him to remain in service beyond the age of 55, as he had requested. The legal basis of the Director General’s impugned decision that adversely affected the complainant was paragraph 2 of Article 53 of the GCE, which is a provision of general application. “According to th[e] case law, a complainant can impugn a decision only if it directly affects her/him, and cannot impugn a general decision unless and until it is applied in a manner prejudicial to her/him, but she/he is not prevented from challenging the lawfulness of the general decision when impugning the implementing decision which has generated their cause of action.” (See Judgment 3291, under 8, and the case law cited therein.)
Reference(s)
ILOAT Judgment(s): 3291
Keywords:
cause of action; general decision;
Judgment 4007
126th Session, 2018
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge their redeployment following a restructuring.
Consideration 4
Extract:
In Judgment 3740, under 11, the Tribunal reiterated 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”. It is evident that the redeployment of a staff member to a new post is liable to cause injury, and it follows that the complainants have a cause of action and the complaints are receivable.
Reference(s)
ILOAT Judgment(s): 3740
Keywords:
cause of action; redeployment;
Judgment 3941
125th Session, 2018
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges a Circular that implements amendments to the Rules of the Medical Benefits Fund.
Consideration 7
Extract:
As the cause of action in the present complaint is the same as in Judgment 3761, the Tribunal adopts and applies the reasoning and the findings and conclusions in that case in the present complaint.
Reference(s)
ILOAT Judgment(s): 3761
Keywords:
cause of action;
Judgment 3931
125th Session, 2018
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants contest the decision to apply new salary scales in New Dehli as from 1 November 2014, which show a salary freeze for staff members already in service and a lower salary for new staff.
Consideration 4
Extract:
In the present case, the complainants’ causes of action are not based on pay slips. They seek to challenge the general decision embodied in the Administrative Order of 1 October 2014 vide Dossier 2-1 New Delhi. They cannot do so. The distinction between challenging a general decision and challenging the implementation of the general decision as applied to an individual staff member is not a barren technical point to frustrate individual staff members from pursuing their rights or protecting their interests. It is a distinction rooted in the nature and extent of the jurisdiction of the Tribunal conferred by the Tribunal’s Statute. The Tribunal must act within the limits established by the Statute. There are many statements in the Tribunal’s case law about the nature of this jurisdiction and its limits. One example of a comparatively recent discussion of those limits and how they arise from the Statute is found in Judgment 3642, consideration 11. As the Tribunal observed in Judgment 3760, consideration 6: “[t]he jurisdiction of the Tribunal is, under the Statute construed as a whole, concerned with the vindication or enforcement of individual rights (see, for example, Judgment 3642, under 11).”
Reference(s)
ILOAT Judgment(s): 3642, 3760
Keywords:
cause of action; general decision; individual decision;
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