Judgment No. 4704
Decision
The complaint is dismissed.
Summary
The complainant challenges the determination made on his Clearance Certificate, upon his separation from service, that there was no medical reason to believe that he was incapacitated due to illness constituting an impairment to health likely to be permanent or of a long duration, as well as the decision to separate him from IAEA while on sick leave.
Judgment keywords
Keywords
separation from service; medical certificate; complaint dismissed
Considerations 5-6
Extract:
It is well established in the Tribunal’s case law that “[o]rdinarily, the process of decision-making involves a series of steps or findings which lead to a final decision. Those steps or findings do not constitute a decision, much less a final decision. They may be attacked as a part of a challenge to the final decision but they, themselves, cannot be the subject of a complaint to the Tribunal” (see Judgments 4404, consideration 3, 3961, consideration 4, 3876, consideration 5, and 3700, consideration 14).
[…]
The Tribunal finds that neither Dr L.’s certification nor the IAEA’s statement in the impugned decision for the purpose of explaining Dr L.’s certification constitutes a final decision within the meaning of Article VII, paragraph 1, of the Tribunal’s Statute. The complainant’s claims concerning his incapacitation are therefore irreceivable.
Reference(s)
ILOAT Judgment(s): 3700, 3876, 3961, 4404
Keywords
step in the procedure; internal remedies not exhausted
Considerations 9-10
Extract:
Judgments 938 and 607, on which the complainant relies, did not establish a general principle that a staff member may not be separated while on sick leave. The question of whether an organisation is under an obligation to extend a fixed-term contract to cover a period of sick leave must be determined by having regard to the organisation’s rules, including any established practice which is binding on the organisation. This position is consistently stated in the Tribunal’s case law, most recently in Judgment 3754, consideration 14:
“Early judgments of the Tribunal, such as Judgment 938 relied on by the complainant, may have been thought to establish a principle of general application that an official’s employment could not be terminated while the official was on sick leave. However it is clear that no such principle of general application has been established by the Tribunal’s case law. This issue was discussed by the Tribunal in Judgment 3175, consideration 14.”
As there was neither a provision in the IAEA’s Staff Regulations and Staff Rules, nor an established practice, or a principle of general application, requiring the IAEA to extend a staff member’s contract because she or he is on sick leave at the expiry of the contract, the IAEA was not obliged to extend the complainant’s contract to cover his sick leave.
Reference(s)
ILOAT Judgment(s): 607, 938, 3175, 3754
Keywords
extension of contract; sick leave
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