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Loss of opportunity (665,-666)
You searched for:
Keywords: Loss of opportunity
Total judgments found: 38
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Judgment 4850
138th Session, 2024
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to terminate his fixed-term appointment for reasons of health.
Consideration 9
Extract:
The Tribunal is satisfied the complainant suffered a moral injury as a result of being denied the right of review of the medical assessment leading directly to the termination of his employment, effective 1 October 2018. He is entitled to moral damages which are assessed in the sum of 10,000 Swiss francs.
Keywords:
burden of proof; duty to inform; loss of opportunity; medical opinion; moral damages; notification; termination of employment for health reasons;
Judgment keywords
Keywords:
burden of proof; complaint allowed; complaint allowed in part; duty of care; duty to inform; loss of opportunity; mandatory time limit; medical opinion; notification; termination of employment for health reasons;
Judgment 4845
138th Session, 2024
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his appointment following the suppression of his post.
Consideration 10
Extract:
As regards material injury, the complainant merely states, without offering further explanation, that the injury is undeniable, and assesses it at 120,000 euros at least.
However, the Tribunal notes that the complainant had been appointed under a fixed-term contract which was due to expire on 31 January 2020 and was not necessarily renewable, but was subject to two months’ notice and the payment of an indemnity on termination of appointment. The complainant ultimately benefited from that notice and from that payment, in fact for a longer period than that to which he would normally have been entitled, since there was a three-month period in place for completion of the reassignment process, during which time he continued to receive his full pay.
It is uncontested that the complainant’s duties were, at least in part, outsourced. Therefore, it is clear that the complainant’s post would, in any event, have been inevitably suppressed in the short term. A new reassignment process should thus have been commenced, in the course of which the complainant’s situation should have been examined in the light of any vacancies arising during a new three-month period.
The complainant therefore lost an opportunity to be reassigned within the Organization following a new reassignment process. However, [...] the Tribunal considers that the loss of opportunity was minimal.
Keywords:
loss of opportunity;
Judgment 4843
138th Session, 2024
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant – whose post was suppressed – challenges the decision to transfer another official to a post to which he believes he should have been reassigned as a priority.
Considerations 6-7
Extract:
First of all, and contrary to what the Organization submits, it is clear that the complainant had a cause of action in challenging the lawfulness of Ms M.’s appointment through an internal appeal, given that he himself was eligible to be appointed to that post. The question whether the complainant is correct in claiming that he should have been given priority over Ms M., or at least that his profile better suited the post in question, is a separate issue from his cause of action and has to be explored later, when the complaint is examined on the merits.
It also goes without saying that the decision to appoint Ms M. to a post for which the complainant was eligible constitutes an administrative decision that can be challenged by means of an internal appeal procedure and, subsequently, by a complaint before the Tribunal (see, for example, Judgments 4087, consideration 7, 3642, consideration 7, and 3450, consideration 7).
Similarly, contrary to what the Organization submits, in asserting in his internal appeal that efforts were supposed to be undertaken to reassign him within Interpol following the suppression of his post, the complainant was, implicitly but unquestionably, alleging a breach of the provisions of the Staff Manual relating to the reassignment process following the suppression of a post. The Secretary General himself had clearly acknowledged this given that, in the impugned decision, he had stated that the objection made by the complainant in support of his internal appeal formed part of the objections set out in an earlier internal appeal against the decision to terminate his appointment and that earlier appeal had been declared admissible. The argument put forward by the Organization in this regard is therefore irrelevant.
Reference(s)
ILOAT Judgment(s): 3450, 3642, 4087
Keywords:
appointment; cause of action; loss of opportunity;
Judgment 4670
136th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks the restitution of amounts wrongly deducted from her salary in respect of sickness insurance contributions.
Considerations 17-18
Extract:
[I]nterpol was negligent in several respects: firstly, it did not take the necessary measures to ensure that it kept itself informed of changes to the French Social Security Code, such as that resulting in this case from the partial review of Article L. 131-9 of that Code by the Constitutional Council; secondly, it was unaware of the possibility of obtaining a retroactive refund of the unduly paid contributions provided for by Article L. 243-6 of the same Code; and, thirdly, even when it approached URSSAF and the host State’s authorities in 2019 with a view to obtaining a refund of the amounts deducted from its officials’ salaries in respect of the ESC, it failed to include in its requests the amounts corresponding to the sums deducted for the 2009-2012 period.
Having regard to the legal uncertainty referred to [...], which only the French authorities and courts could resolve, the Tribunal considers that the complainant was denied a valuable opportunity to receive a refund of the amounts of ESC deducted from her salary for the 2009-2012 period owing to Interpol’s negligence. In the circumstances of the case, the injury resulting from this loss of opportunity will be fairly redressed by ordering the Organization to pay the complainant compensation in an amount equivalent to half of the sums deducted from her salary for that period.
Keywords:
loss of opportunity; material injury; negligence;
Judgment 4668
136th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks the restitution of amounts wrongly deducted from his salary in respect of sickness insurance contributions.
Considerations 15-16
Extract:
[I]nterpol was negligent in several respects: firstly, it did not take the necessary measures to ensure that it kept itself informed of changes to the French Social Security Code, such as that resulting in this case from the partial review of Article L. 131-9 of that Code by the Constitutional Council; secondly, it was unaware of the possibility of obtaining a retroactive refund of the unduly paid contributions provided for by Article L. 243-6 of the same Code; and, thirdly, even when it approached URSSAF and the host State’s authorities in 2019 with a view to obtaining a refund of the amounts deducted from its officials’ salaries in respect of the ESC, it failed to include in its requests the amounts corresponding to the sums deducted for the 2009-2012 period.
Having regard to the legal uncertainty referred to [...], which only the French authorities and courts could resolve, the Tribunal considers that the complainant was denied a valuable opportunity to receive a refund of the amounts of ESC deducted from his salary for the 2009-2012 period owing to Interpol’s negligence. In the circumstances of the case, the injury resulting from this loss of opportunity will be fairly redressed by ordering the Organization to pay the complainant compensation in an amount equivalent to half of the sums deducted from his salary for that period.
Keywords:
loss of opportunity; material injury; negligence;
Judgment 4667
136th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants seek the restitution of amounts wrongly deducted from their salaries in respect of sickness insurance contributions.
Considerations 16-17
Extract:
[...] Interpol was negligent in several respects: firstly, it did not take the necessary measures to ensure that it kept itself informed of changes to the French Social Security Code, such as that resulting in this case from the partial review of Article L. 131-9 of that Code by the Constitutional Council; secondly, it was unaware of the possibility of obtaining a retroactive refund of the unduly paid contributions provided for by Article L. 243-6 of the same Code; and, thirdly, even when it approached URSSAF and the host State’s authorities in 2019 with a view to obtaining a refund of the amounts deducted from its officials’ salaries in respect of the ESC, it failed to include in its requests the amounts corresponding to the sums deducted for the 2009-2012 period.
Having regard to the legal uncertainty referred to above, which only the French authorities and courts could resolve, the Tribunal considers that the complainants were denied a valuable opportunity to receive a refund of the amounts of ESC deducted from their salaries for the 2009-2012 period owing to Interpol’s negligence. In the circumstances of the case, the injury resulting from this loss of opportunity will be fairly redressed by ordering the Organization to pay each of the complainants compensation in an amount equivalent to half of the sums deducted from their salaries for that period.
Keywords:
loss of opportunity; material injury; negligence;
Judgment 4622
135th Session, 2023
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate her appointment for reasons of health.
Consideration 16
Extract:
[T]he complainant was denied a valuable opportunity to retain her employment with the ILO at least on a temporary basis as a result of the flaws in the termination of her appointment, and she is therefore entitled to compensation for the material injury caused.
Having regard, in particular, to the complainant’s age at the time of the termination of her appointment, which was only 43, and to the fact that she had held an appointment without limit of time since 2008, the Tribunal considers that, in the present case, this injury will be fairly redressed by ordering the ILO to pay the complainant, in addition to the sums already awarded to her on termination of her appointment, the equivalent of the salary and allowances of all kinds which she would have received if her appointment had continued beyond 31 May 2018 for two years, net of any income from employment that she may have received during this period. The Organization must also pay her the equivalent of the pension contributions that it would ordinarily have had to pay to the United Nations Joint Staff Pension Fund as her employer for the same period. All these amounts shall bear interest at the rate of 5 per cent per annum as from the respective dates on which they fell due until the date of their payment.
Keywords:
loss of opportunity; material injury;
Judgment 4583
135th Session, 2023
European Molecular Biology Laboratory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his appointment for reasons of professional unsuitability and the decision to place him on special paid leave until the end of his period of notice.
Consideration 8
Extract:
The complainant asks for an award of material damages equivalent to his salary and emoluments from the date the unlawful termination became effective until his ordinary retirement age (65 years) or even later (until the age of 68 years). The Tribunal observes that the complainant held an open-ended contract. According to Regulation R 2 6.08 “[a]n open-ended contract may be terminated at any time by either party”. According to Regulation R 2 6.10 “[t]he retirement age shall be 65 years. Service shall automatically cease on the last day of the month in which the 65th birthday falls. However, on an exceptional basis, a staff member may by mutual agreement with the Director General and in the interest of the Laboratory, carry on working until the age of 68.” In light of these Regulations, there is no evidence that the complainant’s appointment, had it not been unlawfully terminated, would have been extended until he would have reached the age of 68 years, as such extension is exceptional. Nor is there any certainty that, had the complainant’s appointment not been unlawfully terminated, it would have lasted until the ordinary retirement age of 65 years, as an open-ended contract may be terminated at any time. Nonetheless, the complainant lost a valuable opportunity to have his open-ended contract prolonged until his retirement age of 65 years. Considering that when the unlawful termination became effective (July 2022), the complainant was 62 and had three more years until reaching the ordinary retirement age, the Tribunal determines the material damages (under all heads, including loss of pension rights and interest) in the sum of 150,000 euros.
Keywords:
loss of opportunity; material damages;
Judgment 4540
134th Session, 2022
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her dismissal as a result of disciplinary proceedings.
Consideration 13
Extract:
The complainant seeks reinstatement. In all the circumstances and particularly having regard to the three matters referred to in the preceding consideration and notably the third, it is more likely than not that the complainant will not establish a satisfactory working relationship with her colleagues and supervisors in PAHO (see Judgment 4310, consideration 13), if reinstated. Nonetheless, the complainant has lost a valuable opportunity to continue in employment with PAHO and it cannot be assumed there is no prospect at all, of her entirely abandoning her confrontational, rude and disagreeable behaviour. She is entitled to material damages for this loss […].
Reference(s)
ILOAT Judgment(s): 4310
Keywords:
loss of opportunity; material injury; reinstatement;
Judgment 4518
134th Session, 2022
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his non-appointment to a fixed-term position and the non-renewal of his short-term contract, as well as the organisation’s refusal to conduct an investigation into the allegations of harassment made against him which, according to him, form the basis of the non-appointment and non-renewal decisions.
Consideration 10
Extract:
Whilst in the circumstances of this case it would be impracticable to order the complainant’s reinstatement, ITU will be ordered to compensate him because he was denied the opportunity to be appointed to the advertised post on a two-year contract in circumstances where he was the only candidate whom the Director of TSB and the Chief of Department had […] recommended to fill the post after the selection procedure. But for the unsubstantiated allegations, it is very difficult to avoid the conclusion that he would have been appointed.
Keywords:
harassment; investigation; loss of opportunity; reinstatement;
Judgment 4506
134th Session, 2022
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the length of the extension of appointment that was offered to him.
Consideration 7
Extract:
The complainant, in theory, would be entitled to material damages for the loss of opportunity to have his contract extended more than two years. However, considering that on 1 October 2018 the complainant’s appointment was terminated for health reasons, the Tribunal finds that the loss of opportunity is not proven […].
Keywords:
loss of opportunity;
Judgment 4490
133rd Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the amount of damages awarded for the unlawful decision not to renew her fixed-term contract as a Principal Director and to reinstate her in a lower-level post instead.
Considerations 10-12
Extract:
The Appeals Committee was correct in approaching the assessment of damages for the unlawful non-renewal decision as ultimately requiring an assessment of what were the prospects that the contract would, at its expiry, be renewed by lawful decision in any event and, viewed from that perspective, assessing the financial consequences to the complainant in losing the opportunity to have the contract renewed (see, for example, Judgments 2867, consideration 18, 4062, consideration 17, and 4170, consideration 15). […]
If a decision is made not to renew a fixed-term contract but the decision was unlawful then an assessment must be made of lost future income with the organisation (adjusted and offset by any future income from other employment) which will involve an assessment of what the prospects were of the contract being renewed and its duration.
However, the position would, at least in a case such as the present, be no different in substance if the complainant’s grievance had initially been and had remained an allegation of constructive dismissal. In a case of unlawful dismissal, if reinstatement is not ordered (in this case not sought), then the material damages are the lost future income in the position with the organisation adjusted by an assessment of whether the staff member would have remained in that position and, if not, also adjusted by future income from other employment (see Judgment 4234, consideration 10). This assessment can also be approached compendiously by assessing the value of the lost opportunity to remain in employment (see, for example, Judgment 4305, consideration 14).
Reference(s)
ILOAT Judgment(s): 2867, 4062, 4170, 4234, 4305
Keywords:
constructive dismissal; loss of opportunity; material injury; non-renewal of contract;
Judgment 4481
133rd Session, 2022
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision not to extend her appointment at the end of her period of probation.
Consideration 14
Extract:
The complainant is […] entitled to material damages for the loss of an opportunity to have her appointment confirmed and contract extended. For this she will be awarded 5,000 United States dollars.
Keywords:
loss of opportunity; material injury;
Judgment 4399
131st Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to transfer him from a manager position to a non-managerial post.
Consideration 13
Extract:
As the complainant has not established that his unlawful transfer caused him material injury, he will not be awarded compensation for the loss of career opportunities which he seeks.
Keywords:
loss of opportunity; material injury;
Judgment 4391
131st Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to promote him in the 2008 promotion exercise.
Consideration 12
Extract:
Inasmuch as no evidence was provided that the Promotion Board had recommended his promotion retroactive to 2008, and keeping in mind that it is not within the Tribunal’s purview to order the promotion of an official (see Judgments 4066, consideration 11, and 4040, consideration 2), the complainant is entitled to material damages for the loss of a valuable opportunity to be promoted. The EPO will be ordered to pay the complainant a lump-sum amount equivalent to the cumulative amount of the additional salaries and all other benefits that he would have been entitled to receive through his monthly payslips, had he been promoted in the 2012 exercise, until the date of his retirement.
Reference(s)
ILOAT Judgment(s): 4040, 4066
Keywords:
competence of tribunal; loss of opportunity; material damages; promotion;
Judgment 4356
131st Session, 2021
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to place him on the shortlist for a position for which he had applied as a priority candidate.
Consideration 3
Extract:
The Tribunal has accepted that a staff member can challenge a selection process even if the position was ultimately not filled (see Judgment 4033), and that a flawed selection process can result in the loss of a valuable opportunity to be appointed (see Judgment 4098).
Reference(s)
ILOAT Judgment(s): 4033, 4098
Keywords:
cause of action; loss of opportunity; selection procedure;
Judgment 4305
130th Session, 2020
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his appointment due to the abolition of his post and the failure to reassign him to another suitable vacant position.
Consideration 14
Extract:
There was a flaw in the reassignment process and the complainant lost a valuable opportunity to secure another position within UNAIDS and thus lost the opportunity of maintaining continuing employment (see, for example, Judgement 3754, consideration 21). It is inappropriate, in the circumstances, to make an order reinstating the complainant. The complainant seeks, by way of monetary relief, lost salary and moral damages. He is entitled to material damages for the lost opportunity [...].
Reference(s)
ILOAT Judgment(s): 3754
Keywords:
loss of opportunity; material injury;
Judgment 4229
129th Session, 2020
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, a former staff member of the World Food Programme, challenges the decision to maintain the decision not to renew his contract, and to award him material and moral damages instead of reinstatement.
Consideration 4
Extract:
Notwithstanding the setting aside of the impugned decision, the Tribunal considers that the award of 70,000 euros, which the Organization paid to the complainant for the lost opportunity to be considered for renewal, was reasonable. Accordingly, it will be unnecessary to award him any further sum in this regard. Although in the impugned decision the Director-General purported to “set aside” the decision not to renew the complainant’s fixed-term contract, the fact remains that the complainant was separated from service without a valid reason and was not reinstated. It is perhaps this, above all, that justifies the significant amount of damages awarded to him by the Director-General. There is no other basis for awarding further damages for the invalid 2012 PACE appraisal report and the unlawful decision not to renew the complainant’s appointment.
Keywords:
fixed-term; formal flaw; loss of opportunity; material damages; non-renewal of contract; performance report; procedural flaw;
Judgment 4222
129th Session, 2020
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the refusal of UNESCO to award full compensation for the injury suffered as a result of an accident recognized as being service-incurred.
Consideration 18
Extract:
While the complainant also alleges that she has lost the opportunity to be offered a consultancy contract by the Organization after her retirement, this injury, which is purely hypothetical, cannot give rise to compensation.
Keywords:
loss of opportunity; material injury;
Judgment 4216
129th Session, 2020
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the lawfulness of the decision to cancel a competition procedure in which he took part.
Consideration 12
Extract:
The complainant, who [...] was ranked first on the list of suitable candidates drawn up by the selection board for the competition, was deprived, by the flaws in the decisions in question, of a valuable opportunity to be appointed to the advertised post, the loss of which constitutes material injury. That appointment would have entailed his promotion to a higher grade and thus a pay rise from December 2015 or January 2016 until his retirement, a period of around three years.
Keywords:
competition cancelled; loss of opportunity; material injury;
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