Judgment No. 4593
Decision
The complaint and the applications to intervene are dismissed.
Summary
The complainant challenges the withdrawal of his right to supplementary days of annual leave for “travelling time”.
Judgment keywords
Keywords
acquired right; complaint dismissed; travel time
Consideration 7
Extract:
As regards the complainant’s [...] plea alleging that he was not heard before the impugned decision was taken to his detriment, the Tribunal has already held that the general principle protecting an official’s right to be heard cannot be applied to a general, impersonal decision which is collective in scope (see Judgment 4283, consideration 6). That same case law applies to the situation where, as in the present case, the contested decision is purely and simply the consequence of a general decision of that kind.
Reference(s)
ILOAT Judgment(s): 4283
Keywords
general decision; right to be heard
Consideration 10
Extract:
The Tribunal recalls that, according to its case law on acquired rights, the amendment of a rule governing an official’s situation to her or his detriment constitutes a breach of an acquired right only when the structure of the contract of appointment is disturbed or there is impairment of a fundamental and essential term of appointment in consideration of which the official accepted appointment, or which subsequently induced her or him to stay on. In order for there to be a breach of an acquired right, the amendment made must therefore relate to a fundamental and essential term of employment (see, for example, Judgments 4398, consideration 11, 4381, consideration 13 and 14, and 3074, consideration 16, and the case law cited in those judgments).
Reference(s)
ILOAT Judgment(s): 3074, 4381, 4398
Keywords
acquired right
Consideration 11
Extract:
As regards the [...] plea alleging that the withdrawal of the complainant’s travelling time constitutes discrimination as it is based on nationality, the Tribunal notes that the criterion used by the Organisation, which is based on entitlement to expatriation or foreign residence allowance, is relevant to the purpose of travelling time, as it concerns the distinction made between an official’s country of origin and her or his place of employment. The complainant’s argument that use of this new criterion results in discrimination based on nationality is in any event ineffective in the context of the present dispute. Indeed, the objection raised in this regard is, in fact, an objection to the conditions on which the expatriation or foreign residence allowance is awarded, rather than travelling time.
Keywords
nationality; discrimination; travel time
Consideration 12
Extract:
[A]lthough it is true that the period of six and a half months between the lodging of the internal complaint that is the subject of the impugned decision and the delivery of that impugned decision exceeds the period provided for in Article 92.2 of the Staff Regulations, which constitutes a breach by the Organisation of its own rules, theTribunal considers that the delay cannot be considered unreasonable in the circumstances of the present case. Moreover, even though that period breached the applicable provisions, the complainant has not adduced any specific evidence of injury arising from the delay.
Keywords
time limit; delay in internal procedure
Consideration 5
Extract:
As regards the first plea, alleging a lack of delegation in relation to the impugned decision of 21 August 2018 signed by Ms S.D., the Head of the Human Resources and Services Unit, the evidence produced by Eurocontrol shows to the Tribunal’s satisfaction that Ms S.D. had the authority to take and sign that decision.
Pursuant to Decision No. XI/14 (2016) of 1 December 2016, power had been delegated by the Director General to the Director of Resources (Mr A.V.) to take and sign decisions relating, inter alia, to the internal complaint process. Furthermore, that delegating decision remained in force during the implementation of the new organisation of management at Director level which was introduced by the Director General’s Decision No. I/25 of 20 April 2018 concerning the Agency organisation.
Article 1 of this decision states the following with regard to the Agency’s Human Resources and Services Unit, placed under the authority of the aforementioned Head whose name appears in the impugned decision, until the detailed organisation of that Unit should be provided for in separate decisions:
“Ms [S.D.] enjoys the same delegated powers in human resources and other Agency services areas as formerly exercised by Mr A.[V.] Any delegations and valid sub-delegations already made by Mr A.[V.] in this regard remain valid.”
It follows that, as a result of that reorganisation of the Agency by the Director General, contrary to the complainant’s assertions, unless and until separate decisions were made concerning delegation of power within the Unit, the Head of Human Resources enjoyed the powers previously delegated to and exercised by Mr A.V. in that regard.
The first plea is unfounded.
Keywords
delegated authority
Consideration 6
Extract:
[T]he Tribunal recalls that, as it stated in Judgment 4164, consideration 11, “[i]t is well established by the case law that the reasons for a decision must be sufficiently explicit to enable the staff member concerned to take an informed decision accordingly; that they must also enable the competent review bodies to determine whether the decision is lawful and the Tribunal to exercise its power of review”.
Reference(s)
ILOAT Judgment(s): 4164
Keywords
motivation
Consideration 9
Extract:
In its submissions, Eurocontrol relies on the case law of the General Court of the European Union in support of its arguments. However, it is established, as the complainant rightly points out, that the Tribunal is not bound by the case law of other international or regional courts (see, for example, Judgment 4363, consideration 12).
Reference(s)
ILOAT Judgment(s): 4363
Keywords
case law of other tribunals
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