Judgment No. 4465
Decision
1. The impugned decision of 20 November 2018 is set aside.
2. The IAEA shall pay the complainant 13,000 United States dollars in damages.
3. The IAEA shall pay the complainant 8,000 dollars in costs.
4. All other claims are dismissed.
Summary
The complainant challenges the decision to cease paying boarding assistance for his son following amendments to the education grant scheme.
Judgment keywords
Keywords
complaint allowed; icsc decision; acquired right; education expenses; duty of care
Considerations 6-8
Extract:
In Judgment 4381, the Tribunal discussed acquired rights. The Tribunal observed that the concept of breach of acquired rights has its genesis in the first decision given on 15 January 1929 by this Tribunal, then called the Administrative Tribunal of the League of Nations. In that decision (In re di Palma Castiglione v. International Labour Office), the Tribunal held: “The Administration is at liberty to establish for its staff such regulations as it may see fit, provided that it does not in any way infringe the acquired rights of any staff member.” Over the decades since, the basis for recognising and protecting acquired rights has evolved and, in particular, principles developed for demarking what are and are not such rights.
In Judgment 4381, the Tribunal quoted the applicable legal principles as summarised in Judgment 4195, consideration 7:
“According to the case law, ‘[i]n Judgment 61 [...] the Tribunal held that the amendment of a rule to an official’s detriment and without his consent amounts to 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’ (see Judgment 832, under 13). Judgment 832, under 14 (cited in part, below), poses a three-part test for determining whether the altered term is fundamental and essential. The test is as follows: (1) What is the nature of the altered term? ‘It may be in the contract or in the Staff Regulations or Staff Rules or in a decision, and whereas the contract or a decision may give rise to acquired rights the regulations and rules do not necessarily do so.’
(2) What is the reason for the change? ‘It is material that the terms of appointment may often have to be adapted to circumstances, and there will ordinarily be no acquired right when a rule or a clause depends on variables such as the cost-of-living index or the value of the currency. Nor can the finances of the body that applies the terms of appointment be discounted.’
(3) What is the consequence of allowing or disallowing an acquired right and the effect it will have on staff pay and benefits, and how do those who plead an acquired right fare as against others?”
Also, as the Tribunal observed in Judgment 4028, consideration 13, international civil servants are not entitled to have all the conditions of employment or retirement laid down in the provisions of the staff rules and regulations in force at the time of their recruitment applied to them throughout their career and retirement. Most of those conditions can be altered though, depending on the nature and importance of the provision in question, staff may have an acquired right to its continued application.
Reference(s)
ILOAT Judgment(s): 4028, 4195, 4381
Keywords
acquired right
Consideration 9
Extract:
The ICSC’s reasons for the proposed changes to the education grant scheme impugned in these proceedings were rational, logical and credible. They did not involve the general elimination of the benefit but its recasting with modifications of how, when and why the benefit would be paid. The adoption of the proposed changes by the IAEA was in conformity with obligations arising from membership of the UN common system. This is a valid reason for change (see Judgment 1446, consideration 14), at least in the absence of any apparent unlawfulness attending the change either procedurally or substantively.
Reference(s)
ILOAT Judgment(s): 1446
Keywords
icsc decision; acquired right; education expenses
Consideration 10
Extract:
The Tribunal’s case law recognises that the alteration of a benefit can operate to the detriment of staff and this, of itself, does not constitute the breach of an acquired right. It plainly did operate to the complainant’s detriment in the present case. A further element was needed, as discussed in the opening paragraph of the quotation in consideration 7: the complainant must demonstrate that the structure of the employment contract was disturbed or that the modifications impaired a fundamental term of appointment in consideration of which he accepted employment. The complainant has not established, to the Tribunal’s satisfaction, that either element exists in the present case in relation to the changes impugned in these proceedings.
Keywords
acquired right
Considerations 17-18
Extract:
In the present case, the complainant embarked upon the tertiary education of his son at a university in the United States of America in 2014. This was the complainant’s home country and involved travel and boarding. By the time the amendments were made to the education grant scheme, the son had completed three of the four years of his course at that university. The complainant had no real option to alter these arrangements in order to reduce the significant financial burden arising from the amendment to the scheme.
The IAEA breached its duty of care to the complainant, as that expression is currently used in the Tribunal’s case law, and the complainant is entitled to damages.
Keywords
education expenses; duty of care
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