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Ratione personae (699,-666)
You searched for:
Keywords: Ratione personae
Total judgments found: 55
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Judgment 4912
138th Session, 2024
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who worked for the Global Fund as a consultant, requests the Tribunal, inter alia, to set aside the “Global Fund’s decision to not renew his fixed-term contract” and to instruct the organisation to reinstate him in his job.
Consideration 3
Extract:
The Tribunal notes that it is clear enough from the complainant’s pleas and claims that he is in fact challenging the non-renewal of his contract rather than the decision of [the Chair and Vice-Chair of the Ethics and Governance Committee rejecting allegations of impropriety, retaliation and conflict of interest]. However, at the material time, there was no contractual relationship between him and the Global Fund. Therefore, there is, in any event, no basis on which he can be considered as an “official” of the defendant organisation for the purposes of Article II, paragraph 5, of the Tribunal’s Statute, according to which “[t]he Tribunal shall [...] be competent to hear complaints alleging non-observance, in substance or in form, of the terms of appointment of officials”.
Had there been an agreement between the complainant and the Global Fund for the provision of his services as a consultant, the organisation could, in theory, have stipulated that the Tribunal was competent to hear disputes arising out of that agreement (see, for example, Judgment 4652, consideration 21), but that is not the case here.
Reference(s)
ILOAT Judgment(s): 4652
Keywords:
competence of tribunal; non official; ratione personae;
Judgment 4857
138th Session, 2024
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant submits that the Organization committed serious misconduct that breached his rights and considers, in particular, that he was subjected to harassment.
Consideration 4
Extract:
[A] person engaged under a special services agreement did not have the status of an FAO official. The aforementioned Manual [...] provided, in paragraph 319.11, that a holder of such a contract, referred to as a “subscriber”, “is in no way considered to be a staff member of the Organization” and, in paragraph 319.12, that “[t]he Staff Regulations and Staff Rules [did] not apply to subscribers”.
Moreover, paragraph 319.25 provided that any dispute between the parties to a special services agreement would be settled by arbitration – in a procedure involving the establishment of a panel of three arbitrators – thereby precluding the Tribunal’s jurisdiction in this area.
[...]
It is correct that, owing to a specific feature of the law applicable to human resources at the FAO, its “consultants”, the rules applicable to whom are set out in Section 317 of the Manual, are to a certain extent treated as officials and, as such, have access in particular to internal appeals procedures and the Tribunal (see for example, for a reminder of these rules, Judgment 3483 or, for their implicit confirmation, Judgment 4228).
Reference(s)
ILOAT Judgment(s): 3483, 4228
Keywords:
competence; non official; ratione personae;
Judgment 4809
137th Session, 2024
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks a contractual redefinition of his employment relationship and the setting aside of the decision not to renew his last contract.
Consideration 2
Extract:
The Organization submits that the Tribunal does not have jurisdiction to hear the complaint because the complainant, who held external collaboration contracts for most of the period in question, was not an official of the Office.
This challenge to the Tribunal’s jurisdiction – which, in the form in which it is presented, relates to the substance of the dispute – is irrelevant in this case.
It is true that, under the Tribunal’s case law, where an external collaboration contract confers jurisdiction for settling disputes concerning its performance on another judicial authority or – as is more often the case – on an arbitral body, the Tribunal cannot hear such a dispute, even where it concerns precisely the redefinition of the contract in question as a contract appointing an official (see, in particular, Judgments 4652, considerations 16 to 20 and 22, and 2888, considerations 5 and 6).
However, plainly this case law does not apply when that contract grants jurisdiction to the Tribunal to hear disputes relating to its performance, as permitted under Article II, paragraph 4, of the Tribunal’s Statute (see Judgments 4652, consideration 21, and 2888, consideration 7). In this case, the external collaboration contracts concluded by the ILO and the complainant all included a provision in paragraph 12 specifically conferring jurisdiction on the Tribunal to hear “[a]ny dispute arising out of [their] application or interpretation”. The Tribunal therefore has jurisdiction to rule on any dispute relating to their possible redefinition.
Reference(s)
ILOAT Judgment(s): 2888, 4652
Keywords:
arbitration; competence; external collaborator; non official; ratione personae;
Judgment 4759
137th Session, 2024
Organisation of African, Caribbean and Pacific States
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the non-renewal of his employment contract.
Consideration 3
Extract:
The Organisation challenges the Tribunal’s jurisdiction to hear the complaint on the grounds that the complainant is no longer a member of the OACPS’s staff. However, the Tribunal recalls that, pursuant to Article II, paragraph 6(a), of its Statute, access to the Tribunal is open to any official “even if her or his employment has ceased”.
Keywords:
former official; ratione personae; receivability of the complaint;
Judgment 4733
136th Session, 2023
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who was serving on a National Project Personnel contract with the FAO Representation in Malawi, contends that the FAO breached his right to due process and disregarded its own rules and regulations, and that he was subject to unequal treatment.
Judgment keywords
Keywords:
competence; complaint dismissed; non official; ratione personae; summary procedure;
Considerations 3-4
Extract:
Pursuant to Article II, paragraph 5, of its Statute, “[t]he Tribunal shall [...] be competent to hear complaints alleging non-observance, in substance or in form, of the terms of appointment of officials”. The Tribunal is therefore not competent to hear complaints filed by individuals who do not have the status of an official of an organization recognizing its jurisdiction (see Judgment 3049, consideration 4).
In his complaint, the complainant provides a copy of his NPP contract, which included general conditions as well as a specific clause on his legal status. In this clause it was clearly indicated that the complainant was retained to work as “an independent contractor” and not as “an official of [the] FAO”. Although certain other clauses in the contract were not incompatible with the existence of an employer-employee relationship (especially those referring to specific provisions of the FAO Administrative Manual), they cannot be construed as negating the clear indication in the specific clause on the complainant’s legal status. He is not an official and cannot invoke the Tribunal’s jurisdiction.
Reference(s)
ILOAT Judgment(s): 3049
Keywords:
competence; non official; ratione personae;
Judgment 4707
136th Session, 2023
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants contest the modifications brought to the subsistence allowance.
Considerations 6-7
Extract:
CERN does not contest that the complainant has personal standing to maintain his complaint. It accepts that the complainant has standing “before the Tribunal in respect of administrative decisions adversely affecting [his] conditions of association” and it refers to Judgment 1166. However, what it does contest concerns the subject matter of the complaint as it is “not related to the Complainant’s conditions of association deriving from his contract or from” the Staff Rules and Regulations (SRR). Part of CERN’s argument in its reply is that payment of subsistence allowances which are the subject of the ceiling, do not derive from the SRR or an appealable decision of the Director-General of CERN (appealable under Article S VI 1.01 of the SRR), but rather are decided upon by an external entity as the employer of the MPA concerned. The pleas on this topic continue in the rejoinder, surrejoinder, further submissions of the complainant and final comments by CERN. Part of the responsive argument of the complainant is that CERN had not provided any proof that the payments of the subsistence allowance of the complainant had been “decided upon by an external entity”.
The Tribunal’s case law establishes that, generally, a party making an allegation bears the burden of proving it (unless, of course, it is not contested). This approach has relevance in cases where a defendant organization challenges the receivability of a complaint and that challenge is based on a fact or facts bearing upon receivability. Cases have arisen where such challenges have failed because the defendant organization has not proved a fact underpinning the contention that the complaint was not receivable (see, for example, Judgments 3034, consideration 13, and 2494, consideration 4). If a distinction is drawn between the general arrangement whereby CERN made payments on behalf of third parties which is principally a matter of process, and an alteration, particularly a material one, to the amount of any such payment based on a decision of the third party communicated to CERN then proof of that decision may be required to sustain the objection to receivability of the type advanced by CERN. It is not at all obvious, even implicitly, from the material relied upon by CERN that the alteration, by way of reduction, of the subsistence allowance commencing in 2020 payable to the complainant, was ever considered by the complainant’s Home Institution, an American university. The absence of evidence leaves open the possibility that, as a matter of fact, the reduction in the payment of the subsistence allowance to the complainant was a direct result of the implementation of the general decision to place a ceiling of ordinarily 5,163 Swiss francs on subsistence payments which did not involve any decision-making or instructions by or from the complainant’s Home Institution. But it is unnecessary to explore this issue any further as, for reasons which follow, the complaint should be dismissed on its merits.
Reference(s)
ILOAT Judgment(s): 2494, 3034
Keywords:
burden of proof; cause of action; competence of tribunal; ratione materiae; ratione personae; receivability of the complaint;
Judgment 4652
136th Session, 2023
Green Climate Fund
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to pay him compensation equal to the difference between his remuneration as a consultant and the value of the salary and benefits received by staff members performing similar functions.
Judgment keywords
Keywords:
competence; complaint dismissed; consultant; non official; ratione personae;
Considerations 8, 11-21
Extract:
The Tribunal is aware that in many States there is an ongoing debate as to whether the existence of an employment relationship can or should be recognised in certain situations where, although such a relationship is not expressly provided for in the contract, other factors support a conclusion that the person concerned is, in fact, an employee and must be treated as such.
[…]
The Tribunal’s jurisdiction is established and defined by its Statute. It is bound to exercise the jurisdiction so conferred. Centrally, it is to hear complaints of officials having regard to the terms of Article II. Pursuant to Article II, paragraph 5, of its Statute, “[t]he Tribunal shall [...] be competent to hear complaints alleging non-observance, in substance or in form, of the terms of appointment of officials”. The Tribunal’s jurisdiction does not therefore extend to complaints filed by individuals who do not have the status of an official in the defendant organisations (see Judgment 3049, consideration 4).
Although the determination of that status does not depend exclusively on the wording of the contract or the staff regulations and the Tribunal may need to rely on other documents (see, for example, Judgment 3359, consideration 13), in the present case each contract contains a very clear definition of the relationship between the parties.
In Clause G-19 it is clearly indicated that the contract “creates an independent contractor relationship” and that nothing contained in it “shall be construed as establishing or creating between the Fund and the Consultant a relationship of employer and employee [...]”. Although certain other clauses in these contracts are not incompatible with the existence of an employer-employee relationship, they cannot be construed as negating the clear indication in Clause G-19 as to the legal status of the complainant.
Whilst the complainant argues that offering the contracts to him as an “independent consultant” was an abuse of power, because they were offered in those terms for an ulterior purpose, namely, to disguise the true nature of the employer-employee relationship which was intended to be created, there is nothing in the file to suggest that the terms of the contracts did not reflect the parties’ true intentions.
There is no basis on which the complainant can claim that he should be retroactively assigned a different contractual status, given that he had freely signed both contracts (see, for example, Judgments 2734, consideration 1, 2415, consideration 4, and 2308, consideration 17).
Moreover, it is noteworthy that Clause G-21 provides specifically that any dispute not resolved amicably shall be finally settled by arbitration. The Tribunal has already had occasion to rule that it has no jurisdiction to hear a dispute relating to a contract concluded with an independent contractor or collaborator which contains such an arbitration clause (see Judgment 2888, consideration 5, and the case law cited therein).
In Judgment 2888, consideration 6, the Tribunal further explained that […]
These considerations apply, in the same way, to the present case.
The existence of an arbitration clause in some contracts has been treated by the Tribunal as evidencing an agreement to exclude the jurisdiction of the Tribunal (see Judgments 3705, consideration 4, 2688, consideration 5, 2017, consideration 2a, and 1938, consideration 4).
It is obvious that the inclusion of an arbitration clause in the contract of an official would be contrary to the Statute of the Tribunal and the basis on which organisations recognize the Tribunal’s jurisdiction. Indeed, if a person is or was an official of an organisation which has recognized the Tribunal’s jurisdiction, that person has a right to commence and maintain proceedings alleging non-observance of the terms of appointment or of the staff regulations and can do so notwithstanding the existence of an arbitration clause in a contract between that person and the organisation concerned.
The inclusion of an arbitration clause in the contract of a non-official is not unlawful in itself. In this case, as noted above, the arbitration clause specifically provides for arbitration by a single arbitrator in the Republic of Korea.
The Tribunal notes that there appears to be no time limit in the contract for the submission of the dispute to arbitration and the complainant may, if he so wishes, advance all his arguments before the arbitrator.
The Tribunal would be competent to hear disputes concerning the execution of a contract of a non-official where the contract itself provides for the Tribunal’s competence, as provided for by Article II, paragraph 4, of its Statute (see Judgments 967 and 803).
Reference(s)
ILOAT Judgment(s): 803, 967, 1938, 2017, 2308, 2415, 2688, 2734, 2888, 3049, 3359, 3705
Keywords:
arbitration; competence; non official; ratione personae;
Judgment 4646
135th Session, 2023
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who was employed under a series of Special Service Agreements, submits that she was requested without a valid reason to stop working immediately and that WHO did not grant her request for conciliation and amicable settlement.
Judgment keywords
Keywords:
competence; complaint dismissed; ratione personae; special service agreement; summary procedure;
Consideration 3
Extract:
The complainant states in the complaint form that she filed the complaint in her capacity as a former official. However, according to the express terms of the SSA under which she was employed, the complainant did not have the status of a WHO official. As the complainant cannot be considered as an official or former official of WHO and is not covered by WHO’s Staff Rules and Regulations, she has no access to this Tribunal (see Judgments 3705, consideration 4, 3551, consideration 3, and 3049, consideration 4).
Reference(s)
ILOAT Judgment(s): 3049, 3551, 3705
Keywords:
competence; former official; ratione personae; special service agreement;
Judgment 4582
135th Session, 2023
Organisation of African, Caribbean and Pacific States
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks the reclassification of her employment contracts. She also claims that she was the victim of harassment and seeks compensation for the injury she alleges to have suffered.
Consideration 2
Extract:
The Organisation challenges the Tribunal’s competence to hear the complaint. However, the Tribunal recalls that, under Article II, paragraph 6(a), of its Statute, the Tribunal is open to any official, “even if her or his employment has ceased”. The challenge to the Tribunal’s competence will therefore be dismissed.
Keywords:
competence; former official; ratione personae; receivability of the complaint;
Judgment 4548
134th Session, 2022
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant claims compensation for the injury she considers she has suffered because she was not re-hired by the ILO.
Judgment keywords
Keywords:
competence of tribunal; complaint dismissed; external candidate; former official; ratione personae;
Judgment 4526
134th Session, 2022
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his contract for misconduct.
Judgment keywords
Keywords:
competence; complaint dismissed; non official; ratione personae; unops;
Consideration 8
Extract:
The Tribunal recently concluded in Judgment 3551, consistent with more recent case law, that a person in a situation broadly analogous to that of the complainant could not avail himself of the Tribunal’s jurisdiction as he was not an official of the defendant organisation. Not only was the existence of an arbitration clause viewed as relevant in Judgment 3551 in determining the status of the complainant, the existence of such a clause has, in a number of cases concerning individuals on contract, been treated as evidencing an agreement to exclude the jurisdiction of the Tribunal (see, for example, Judgments 1938, consideration 4, 2017, consideration 2(a), 2688, consideration 5, 2888, consideration 5, and 3705, consideration 4).
Reference(s)
ILOAT Judgment(s): 1938, 2017, 2688, 2888, 3551, 3705
Keywords:
competence; non official; ratione personae; receivability of the complaint;
Judgment 4486
133rd Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the composition of the Munich Staff Committee and of the Central Staff Committee.
Consideration 4
Extract:
With regard to his standing as an alleged member of the MSC [Munich Staff Committee] and the CSC [Central Staff Committee], as rightly pointed out by the IAC and endorsed by the President, at the time of the appeal, the complainant was not a member of the MSC because he had resigned from it, regardless of the purpose underlying his resignation. He was not a member of the CSC either. Pursuant to Article 2 of the then Election Regulations, “[t]he local section [that is to say the MSC] shall appoint the Munich members of the [CSC]”. Therefore, his election to the MSC did not automatically mean that he was also elected to the CSC. On the contrary, a separate appointment is a prerequisite according to the above provision. The complainant did not produce any evidence that the MSC appointed him as a member of the CSC. Thus, his claims as a staff representative of either the MSC or the CSC, including claims for declaring the composition of the MSC and the CSC void, for recognising his mandate to represent in the CSC the category C employees and for accessing the tools of communication for Staff Committee’s members, are irreceivable ratione personae. Accordingly, his allegation that the denial of his participation in the CSC activities constitutes a violation of the prohibition of non-discrimination and of equal treatment is not receivable either.
Keywords:
competence; internal appeals body; member of an internal body; ratione personae; receivability of the complaint; staff representative;
Judgment 4403
132nd Session, 2021
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reject his claim for additional compensation for the injuries suffered in connection with the performance of his contract and to deny him access to the internal appeal process.
Judgment keywords
Keywords:
competence of tribunal; complaint dismissed; non official; ratione personae;
Consideration 7
Extract:
The fact that consultants are defined […] as staff members for purposes of the Compensation Plan insurance only does not sustain a conclusion that a consultant covered by this insurance policy is an official for the purposes of Article II, paragraph 5, of the Statute of the Tribunal. Consultants like the complainant were not.
Keywords:
competence of tribunal; insurance; non official; ratione personae;
Judgment 4358
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.
Consideration 2
Extract:
Article II of the Tribunal’s Statute recognises that officials whose employment has ceased can access the Tribunal (Article II, paragraph 6(a)), a circumstance which might, for example, involve the enforcement of rights which had arisen during the currency of their employment (see, for example, Judgment 4219, consideration 17). However it is nonetheless necessary, to render a complaint receivable, for a complainant to be seeking to vindicate non-observance of her or his terms of appointment or Staff Regulations as are applicable (Article II, paragraph 5, of the Tribunal’s Statute). Ordinarily, as is the case in the present proceedings, a person who has ceased to be a member of the staff of an international organisation has no subsisting terms of appointment nor are there ordinarily any applicable Staff Regulations and none applying to former staff members are pointed to in these proceedings.
Accordingly the complaint must be dismissed as irreceivable as the Tribunal has no competence to hear it (see, for example, Judgments 3774, consideration 1, and 3709, consideration 4).
Reference(s)
ILOAT Judgment(s): 3709, 3774, 4219
Keywords:
competence; former official; ratione personae;
Judgment keywords
Keywords:
competence; complaint dismissed; former official; ratione personae;
Judgment 4219
129th Session, 2020
ITER International Fusion Energy Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who had been seconded to the ITER Organization, challenges the decision to end his secondment and the failure to investigate his harassment allegations.
Judgment keywords
Keywords:
competence; complaint allowed; harassment; ratione personae; secondment;
Consideration 17
Extract:
[T]he Tribunal has recognised that former officials can seek redress in the Tribunal when, inter alia, the former official is seeking to enforce rights which had arisen during the currency of her or his employment with the international organisation concerned (see, for example, Judgments 3505, consideration 3, and 3915, consideration 3).
Reference(s)
ILOAT Judgment(s): 3505, 3915
Keywords:
competence; former official; ratione materiae; ratione personae;
Consideration 12
Extract:
The Tribunal now turns directly to the question of whether the complainant was an official for the purposes of the Tribunal’s Statute. In relation to seconded staff, it has been said by the Tribunal that “[a]s a general rule, the effect of secondment is to suspend the contractual relationship between the releasing agency and the employee, who retains the right to return to the releasing agency upon expiry of the secondment term without having to seek other employment. During secondment, [she or]he is subject to the staff regulations and rules of the receiving agency” (see Judgment 2184, consideration 4). Ultimately, of course, the status of a seconded employee has to be assessed having regard to the specific arrangements in place concerning the secondment. One case where a seconded employee was not viewed as an official or employee of the receiving organisation is Judgment 3247. Additionally, as the Tribunal observed in Judgment 2918, consideration 11, “[s]econdment is, in essence, a tripartite agreement which, ordinarily, involves an agreement between the person seconded and the receiving organisation, at least as to some matters”. In that case the applicability of the Staff Regulations depended on whether an individual had concluded an employment contract with the organisation and the Tribunal found the seconded staff had not. Additionally in that judgment reference was made to Judgment 703, which established that secondment does not necessarily preclude the person concerned from becoming a staff member of the organisation to which she or he is seconded.
Reference(s)
ILOAT Judgment(s): 703, 2184, 2918, 3247
Keywords:
competence; official; ratione personae; secondment; staff member;
Judgment 4201
128th Session, 2019
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision taken by the Executive Committee of the Staff Association to reject his application for legal support in connection with a complaint he had filed with the Tribunal.
Consideration 3
Extract:
The Tribunal notes that, at the time when he filed his complaint, the complainant was a former official. Although the Tribunal is open to former officials of international organizations recognising its competence, a complaint filed by a former official must, like any other complaint, invoke non-observance, in substance or in form, of the terms of the complainant’s appointment and/or of provisions of the Staff Regulations, as required by Article II, paragraph 5, of the Tribunal’s Statute. In this case, however, the complainant does not allege that any provision of his terms of appointment or of the Staff Regulations has been violated.
Reference(s)
ILOAT reference: Article II, paragraph 5, of the Statute
Keywords:
competence of tribunal; former official; ratione materiae; ratione personae;
Judgment 4194
128th Session, 2019
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge the refusal to consult them concerning the use of external contractors.
Considerations 7-9
Extract:
Each staff member of an international organisation has a right to freely associate and the organisation has a corresponding duty to respect that right. This is a necessary incident of their employment (see, for example, Judgment 911, consideration 3). On the assumption that, as an incident of freedom of association, an organisation has a duty to meet or satisfy a staff representative’s legitimate request for information as an element of a broader obligation to consult (see, for example, Judgment 2919, consideration 15), and fails to do so, then a staff representative would, in that individual capacity and on this assumption, have a cause of action to enforce that duty.
There is no issue that, at the time these complaints were filed, each of the complainants had ceased being a member of the Munich Staff Committee even if one or a number may have held another office as a staff representative. Thus, when the proceedings were commenced in the Tribunal, the foundation of their cause of action had been removed. Their complaints are irreceivable.
This is not a barren technical conclusion. If their complaints were receivable, the merits of the case and the grant of relief would depend on the complainants demonstrating an ongoing right to be provided with the information and a right, if it existed, to continue to require the EPO to do what had been earlier requested. An immediate and probably insuperable problem would arise concerning relief if the complainants were able to establish, on the merits, they had been and were entitled to some or all of the information they had sought or had a right to request that certain things be done. But as they are no longer members of the Munich Staff Committee, they are not now entitled to any information of the type sought in the letter of 17 September 2009 nor to assert a right that the EPO do certain things. However this conclusion is not a barrier, more generally, to the enforcement of a right a member of a staff committee may have to be provided with information or a right to require the organisation to act in circumstances where the membership of the committee fluctuates over time. That is because when a staff representative has asserted a right arising from that status, the assertion or vindication of that right in proceedings before the Tribunal can be pursued by a newly elected staff representative as a “successor in title” (see Judgment 3465, consideration 3).
That would ordinarily involve the relevant committee approving the new staff representative assuming the role of the former staff representative. If approval was given then all steps taken by the former staff representative could be treated as steps taken by the new staff representative. In this way, steps taken by the former staff representative to pursue the grievance by way of internal appeal can be treated as steps taken by the new staff representative. The prosecution of a complaint in the Tribunal by the new staff representative would not be defeated by an argument that the new staff representative had not exhausted internal means of redress. She or he would have done so vicariously because of the actions of the former staff representative.
Reference(s)
ILOAT Judgment(s): 911, 2919, 3465
Keywords:
cause of action; duty to inform; freedom of association; internal remedies exhausted; ratione personae; staff representative;
Judgment 4126
127th Session, 2019
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, a former staff member of the ICC who had separated from service in October 2015, challenges the rejection of his harassment complaint filed in March 2018 against the President of the Staff Union Council.
Consideration 3
Extract:
The complaint is irreceivable. Although Section 4 of Administrative Instruction ICC/AI/2005/005 states that it applies to former staff members, it is firmly established in the case law that the rules governing the receivability of complaints filed with the Tribunal are established exclusively by its own Statute (see, for example, Judgment 3889, under 3). Pursuant to Article II, paragraph 5, of its Statute, the Tribunal is competent to hear complaints alleging “non-observance, in substance or in form, of the terms of appointment of officials and of provisions of the Staff Regulations”. In the present case, the Tribunal finds that the complainant, a former official of the ICC, does not allege any breach of his terms of appointment or of ICC Staff Rules applicable to him while he was still an ICC official. His complaint, which does not fall within the competence of the Tribunal, is therefore clearly irreceivable and must be summarily dismissed in accordance with the procedure provided for in Article 7 of the Rules of the Tribunal.
Reference(s)
ILOAT reference: Article 7 of the Rules; Article II, paragraph 5, of the Statute
ILOAT Judgment(s): 3889
Keywords:
competence of tribunal; former official; ratione personae; receivability of the complaint; summary procedure;
Judgment 4045
126th Session, 2018
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who had worked at the EPO as a consultant, asks the Tribunal to confirm that he was employed under the conditions applicable to permanent employees or, alternatively, to auxiliary staff.
Judgment keywords
Keywords:
complaint dismissed; non official; ratione personae;
Consideration 3
Extract:
The complaint will be dismissed. The foregoing shows that the complainant was an independent contractor employed by the private company to provide the subject services to the EPO. He had no employment connection with the EPO deriving from a contract of employment or from the status of a permanent employee (see Judgment 2649, under 8). He was not an EPO employee or an auxiliary staff member. His employment relationship was with the private company. He never belonged to the category of employees to whom the Service Regulations for permanent employees of the Office or the Conditions of Employment for Auxiliary Staff applied. There are therefore no similarities between his employment relationships with the EPO which would bring him within the principles stated in Judgment 3090, considerations 4 to 7, for example. In that judgment, the Tribunal held that it had competence, under Article II, paragraph 5, of its Statute, to hear the complaint of a person who had been employed under successive short-term contracts for seven years with the World Intellectual Property Organization.
Reference(s)
ILOAT reference: Article II, paragraph 5, of the Statute
ILOAT Judgment(s): 2649, 3090
Keywords:
competence of tribunal; non official; ratione personae;
Judgment 3938
125th Session, 2018
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to confirm her appointment due to the rejection of her application for a work visa by the authorities of the country of her duty station.
Judgment keywords
Keywords:
appointment; competence of tribunal; complaint dismissed; contract; host state; non official; offer withdrawn; ratione personae; receivability of the complaint;
Considerations 11 and 12
Extract:
[The Organization] advised the complainant that [...] the [host State] authorities [...] would not issue her an entry visa [...].
As the complainant’s appointment was conditional on her obtaining a work visa, her appointment was not confirmed. It follows that as she was not a UNESCO official, her complaint is irreceivable and will be dismissed.
Keywords:
competence of tribunal; non official; ratione personae; receivability of the complaint; terms of appointment;
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