Judgment No. 4675
Decision
The complaint is dismissed.
Summary
The complainant seeks the reclassification of her employment relationship and the consequential regularisation of her pension entitlements.
Judgment keywords
Keywords
short-term; conversion of contract; redefinition of contract; complaint dismissed
Consideration 4
Extract:
[A]lthough, in those judgments, the Tribunal found that the successive short-term contracts given to the complainants in question actually constituted a continuous employment relationship which warranted a reclassification to that effect, the Tribunal had already found – and expressly pointed out – that those contracts had been renewed without any notable breaks (see Judgments 3225, consideration 8, and 3090, consideration 7). It was clear from the evidence adduced in the cases in question that the complainants’ short-term contracts had followed one another seamlessly, subject only to very brief interruptions, which showed that breaking down the employment relationship into multiple temporary appointments, as the organisation had done, was artificial.
In the present case, the requirement to have no notable breaks, as established by this case law, is not met. It is apparent from a table summarising the complainant’s employment contracts, that she herself supplied in her complaint, that the employment relationship between her and WOAH between 2 January 2002 and 31 January 2013 was subject to many long breaks, loosely corresponding to the second half of every year, and lasting up to eight months. Accordingly, over the period in question, the duration of all of the complainant’s temporary contracts when added together was only five years and four months (and not six months, as the complainant erroneously stated in her submissions), in other words, not even half of the overall duration of 11 years and one month that the period represented.
Reference(s)
ILOAT Judgment(s): 3090, 3225
Keywords
short-term; conversion of contract; redefinition of contract
Consideration 6
Extract:
[T]he Tribunal has consistently stated that bad faith cannot be presumed and must be proven by the evidence (see, for example, Judgments 4333, consideration 15, 4161, consideration 9, 3902, consideration 11, or 2800, consideration 21). Moreover, this case law must be applied particularly rigorously where the allegation of bad faith is accompanied by an accusation of fraud (see, for example, Judgment 3407, consideration 15).
Reference(s)
ILOAT Judgment(s): 2800, 3407, 3902, 4161, 4333
Keywords
fraud; bad faith
Consideration 8
Extract:
[T]he complainant submits in this regard that, at certain times, she had to work without a written contract of appointment.
[T]he Tribunal considers that employing the complainant under mere oral contracts was objectively unlawful. While, as WOAH points out, the case law does acknowledge that the appointment of an official by an organisation can be recognised even in the absence of a written contract, it cannot be inferred therefrom that the employment relationship thus created is necessarily lawful.
Keywords
contract
Consideration 9
Extract:
[T]he complainant puts forward the fact that part of her remuneration was paid in cash.
However, [...] the Tribunal notes that such a practice is not, in itself, unlawful.
Keywords
payment
Consideration 11
Extract:
It is well settled by the Tribunal’s case law that a decision that does not alter the legal situation of an official is not a decision that adversely affects her or him and it cannot, therefore, be challenged before the Tribunal (see, for example, Judgments 4038, consideration 3, 3428, consideration 13, 2364, consideration 4, or 764, consideration 4).
Reference(s)
ILOAT Judgment(s): 764, 2364, 3428, 4038
Keywords
administrative decision
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