Patere legem (209,-666)
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Keywords: Patere legem
Total judgments found: 80
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Judgment 4153
128th Session, 2019
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the lawfulness of a competition procedure in which she participated and of the appointment made at the end of that procedure.
Consideration 5
Extract:
According to the Tribunal’s case law, an international organisation must observe the essential rule in every selection procedure, which is that the person appointed must possess the minimum qualifications specified in the vacancy notice (see Judgment 3372, consideration 19). It is also apparent from the case law that an international organisation which decides to hold a competition in order to fill a post cannot select a candidate who does not satisfy one of the required qualifications specified in the vacancy notice. Such conduct, which is tantamount to modifying the criteria for appointment to the post during the selection process, incurs the Tribunal’s censure on two counts. Firstly, it violates the principle of tu patere legem quam ipse fecisti, which forbids the Administration to ignore the rules it has itself defined. Secondly, the appointment body’s alteration, after the procedure has begun, of the qualifications which were initially required in order to obtain the post, introduces a serious flaw into the selection process with respect to the principle of equal opportunity among candidates. Irrespective of the reasons for such action, it inevitably erodes the safeguards of objectivity and transparency which must be provided in order to comply with this essential principle, a breach of which vitiates any appointment based on a competition (see Judgments 3641, consideration 4(a), or 4001, consideration 15).
Reference(s)
ILOAT Judgment(s): 3372, 3641, 4001
Keywords:
patere legem; selection procedure;
Judgment 4147
128th Session, 2019
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision not to retain his candidature for a post.
Consideration 13
Extract:
The consistent case law of the Tribunal has it that the amount of compensation for unreasonable delay will ordinarily be influenced by the interrelated considerations of the length of the delay and the effect of the delay (see Judgments 3160, under 17, 3582, under 4, 3688, under 12, and 3879, under 5). In the present case, the complainant has not articulated what impact the delay has had on him. Accordingly, no award of moral damages will be made.
Reference(s)
ILOAT Judgment(s): 3160, 3582, 3688, 3879
Keywords:
delay in internal procedure; moral injury; patere legem;
Judgment 4115
127th Session, 2019
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to downgrade him for serious misconduct.
Consideration 13
Extract:
The disciplinary proceedings were initiated before the appraisal period concluded. In Judgment 3224 the Tribunal said at consideration 7 that an organisation cannot base an adverse decision on a staff member’s unsatisfactory performance if it has not complied with the rules governing the evaluation of that performance. The decision to commence disciplinary proceedings can, for the purposes of the application of this principle, be characterised as an adverse decision. Even if the EPO believed that nothing was going to change, in terms of the complainant’s conduct, between the time the disciplinary proceedings were commenced and the conclusion of the appraisal period a little over a month later, it was nonetheless obliged to complete the assessment of the complainant’s performance in accordance with Circular No. 366 before initiating the disciplinary proceedings.
Keywords:
disciplinary procedure; due process; organisation's duties; patere legem; performance evaluation; unsatisfactory service; work appraisal;
Judgment 4035
126th Session, 2018
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant accuses her former supervisor of moral harassment.
Consideration 11
Extract:
[T]he complainant’s contention that in this case UNESCO breached the time limits prescribed in the provisions governing the appeals procedure and that in general the procedure was excessively long is well founded.
The evidence shows that rather than being held, as paragraph 14 of its Statutes stipulates, “not later than two months after [receipt of the Administration’s] reply”, the Appeals Board’s hearing was not held until 17 March 2016, though the reply had been submitted on 11 September 2014, over a year and a half earlier. Moreover, paragraph 19 of those Statutes provides that the Appeals Board’s report must be forwarded to the Director-General and a copy sent to the official “as soon as possible”, but the report was not in fact issued until 30 June 2016 and was forwarded only on 7 July, more than three and a half months after the hearing, which does not seem consistent with the requirement stipulated in paragraph 19. Lastly, as stated above, the Director-General’s final decision was taken on 16 January 2017, more than six months after the Appeals Board delivered its report, whereas paragraph 20 of the Statutes provides that the Director-General “shall make a decision thereon as soon as possible”.
It is true that, as UNESCO rightly points out, the delays identified above were partly attributable to the complainant, who, amongst other things, requested extensions of time limits for filing her own submissions, and that they can also be explained by the unusual complexity of the case. It should likewise be borne in mind that the Director-General’s final decision was preceded by discussions with the complainant aimed at reaching a settlement, which obviously delayed its adoption.
Nevertheless, the Organization was obliged, in accordance with the principle tu patere legem quam ipse fecisti, to adhere more strictly to the procedural time limits laid down in the Statutes of the Appeals Board. Its failure to do so added unduly to the total length of the internal appeal procedure, three and a half years in all, which is indisputably too long. Moral injury was thereby caused to the complainant, for which she legitimately claims redress (see, for similar cases, Judgment 3688, under 11, and aforementioned Judgment 3935, under 16).
Reference(s)
ILOAT Judgment(s): 3688, 3935
Keywords:
internal procedure; patere legem; time limit;
Judgment 4031
126th Session, 2018
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the step level he was placed in upon implementation of a new local salary scale for General Service staff in New Delhi, India.
Consideration 8
Extract:
The complainant submits that he suffered injury as a consequence of the “inordinate, inexplicable and inexcusable” delay in the internal appeal process. He seeks moral damages on this account. The Tribunal has relevantly stated as follows in Judgment 3160, consideration 17:
“The amount of compensation for unreasonable delay will ordinarily be influenced by at least two considerations. One is the length of the delay and the other is the effect of the delay. These considerations are interrelated as lengthy delay may have a greater effect. That latter consideration, the effect of the delay, will usually depend on, amongst other things, the subject matter of the appeal. Delay in an internal appeal concerning a matter of limited seriousness in its impact on the appellant would be likely to be less injurious to the appellant than delay in an appeal concerning an issue of fundamental importance and seriousness in its impact on the appellant.”
Reference(s)
ILOAT Judgment(s): 3160
Keywords:
delay in internal procedure; internal appeal; moral injury; patere legem; reasonable time;
Judgment 4009
126th Session, 2018
Energy Charter Conference
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to extend his fixed-term contract following the abolition of his post, but to give him a Project Staff contract.
Considerations 8-13
Extract:
The Tribunal recalls that, in keeping with the principle tu patere legem quam ipse fecisti, when a text provides for the consultation of a body representing the staff before the adoption of a decision, the competent authority must follow that procedure, otherwise its decision will be unlawful (see, for example, Judgments 3883, under 20, 3671, under 4, and 1488, under 10). [...]
In accordance with the principle tu patere legem quam ipse fecisti, the Secretary General had to abide by Staff Rule 25.1 and consult Senior Management officers about the non-extension of the complainant’s contract and the proposal to give him a Project Staff contract. Furthermore, their conclusions should have been recorded in writing, in accordance with that provision.
Reference(s)
ILOAT Judgment(s): 1488, 3671, 3883
Keywords:
advisory body; patere legem;
Judgment 4008
126th Session, 2018
Energy Charter Conference
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: In her first complaint, the complainant challenges the decision not to extend her fixed-term contract following the abolition of her post, but to give her a Project Staff contract. In her second complaint, she challenges three vacancy notices concerning C category posts and in her third complaint, she challenges the rejection of her application for two of these posts.
Considerations 9 and 13
Extract:
The Tribunal recalls that, in keeping with the principle tu patere legem quam ipse fecisti, when a text provides for the consultation of a body representing the staff before the adoption of a decision, the competent authority must follow that procedure, otherwise its decision will be unlawful (see, for example, Judgments 3883, under 20, 3671, under 4, and 1488, under 10). [...]
In accordance with the principle tu patere legem quam ipse fecisti, the Secretary General had to abide by Staff Rule 25.1 and consult Senior Management officers about the non-extension of the complainant’s contract and the proposal to give her a Project Staff contract. Furthermore, their conclusions should have been recorded in writing, in accordance with that provision.
Keywords:
advisory body; patere legem;
Consideration 7
Extract:
Staff Rules 4.1 and 4.3 stipulate that the Secretary General must obtain the Staff Committee’s opinion before adopting his position. He is free to follow or to reject that opinion. He may criticise it and explain why he cannot endorse it, but he cannot lawfully consult each staff member individually instead of consulting the properly constituted Staff Committee.
The evidence in the file also shows that town hall meetings were indeed held, but they cannot make up for the lack of a Staff Committee opinion or remedy a flaw relating to its consultation.
Keywords:
advisory body; patere legem;
Judgment 4007
126th Session, 2018
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge their redeployment following a restructuring.
Considerations 5 and 8
Extract:
In Judgment 3907, [...] the Tribunal considered the lawfulness of the Principles and Procedures. At consideration 26, the Tribunal held:
“As the promulgation of the Principles and Procedures by Information Circular was in violation of the Presidential Directive, they were without legal foundation and are, therefore, unlawful as are the decisions taken pursuant to the Principles and Procedures. It follows that the decisions to abolish the complainant’s position and to terminate the complainant’s appointment were also unlawful and will be set aside.” [...]
The ICC does not dispute the fact that the redeployment was effected pursuant to the Principles and Procedures and does not seek to establish that it could have been done lawfully by other means. Accordingly, for the reasons stated in Judgment 3907, the redeployment decisions are unlawful and will be set aside, as will the impugned decisions [...]. In the circumstances, a consideration of whether the complainants’ positions underwent substantial changes as a result of the redeployment is unnecessary.
Reference(s)
ILOAT Judgment(s): 3907
Keywords:
abolition of post; patere legem; publication;
Judgment 4004
126th Session, 2018
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the rejection of his appeal against the abolition of his post and the termination of his fixed-term appointment, which was filed after he had accepted a mutually agreed separation.
Considerations 6-7
Extract:
Among other issues which he raises, the complainant challenges the legal validity of the Information Circulars, and, by extension, the Principles and Procedures contained therein, under which his post was abolished and he separated from the ICC. He argues that by publishing the Principles and Procedures in the Information Circulars, the Registrar breached the method stipulated for their promulgation as provided in the Presidential Directive ICC/PRESD/G/2003/001 (the Presidential Directive). The Tribunal considered this very question in a detailed analysis in Judgment 3907 and concluded as follows in consideration 26:
“In conclusion, pursuant to the Presidential Directive, the Principles and Procedures should have been promulgated by an Administrative Instruction or, arguably, by a Presidential Directive. As the promulgation of the Principles and Procedures by Information Circular was in violation of the Presidential Directive, they were without legal foundation and are, therefore, unlawful as are the decisions taken pursuant to the Principles and Procedures. It follows that the decisions to abolish the complainant’s position and to terminate the complainant’s appointment were also unlawful and will be set aside.”
This finding also holds for the present complaint, with the result that the decisions to abolish the complainant’s post and to terminate his appointment were unlawful since the Principles and Procedures upon which they were made were promulgated in breach of the process stipulated in the Presidential Directive. The Separation Agreement arose from the implementation of the unlawful Principles and Procedures. The Separation Agreement is therefore unenforceable. In the circumstances, the ICC’s contention that the complaint is irreceivable is unsustainable and is rejected. Accordingly, the decisions to abolish the complainant’s position and to terminate his appointment will be set aside.
Reference(s)
ILOAT Judgment(s): 3907
Keywords:
abolition of post; agreed termination; patere legem; publication;
Judgment 4001
126th Session, 2018
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to confirm the appointment of Ms S. to the post of Head of the Caribbean Section.
Consideration 15
Extract:
According to the Tribunal’s case law, an international organisation must observe the essential rule in every selection procedure, which is that the person appointed must possess the minimum qualifications specified in the vacancy notice (see Judgment 3372, under 19). The case law further states that an international organisation which decides to hold a competition in order to fill a post cannot select a candidate who does not satisfy one of the required qualifications specified in the vacancy notice. Such conduct, which is tantamount to modifying the criteria for appointment to the post during the selection process, incurs the Tribunal’s censure on two counts. Firstly, it violates the principle which forbids the Administration to ignore the rules it has itself defined (tu patere legem quam ipse fecisti). In this respect, a modification of the applicable criteria during the selection procedure more generally undermines the requirements of mutual trust and fairness which international organisations have a duty to observe in their relations with their staff. Secondly, the appointment body’s alteration, after the procedure has begun, of the qualifications which were initially required in order to obtain the post, introduces a serious flaw into the selection process with respect to the principle of equal opportunity among candidates. Irrespective of the reasons for such action, it inevitably erodes the safeguards of objectivity and transparency which must be provided in order to comply with this essential principle, a breach of which vitiates any appointment based on a competition (see Judgment 3641, under 4(a)).
Reference(s)
ILOAT Judgment(s): 3372, 3641
Keywords:
patere legem; selection procedure;
Judgment 3995
126th Session, 2018
International Fund for Agricultural Development
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the measures taken by IFAD following its investigation into his allegations of harassment.
Consideration 9
Extract:
According to the Tribunal’s case law, by virtue of the principle that an international organisation must provide its staff members with a safe and healthy working environment, it is liable for all injuries caused to a staff member by a supervisor when the victim is subjected to treatment that is an affront to her or his dignity (see, for example, Judgments 1609, under 16, 1875, under 32, 2706, under 5, or 3170, under 33).
Reference(s)
ILOAT Judgment(s): 1609, 1875, 2706, 3170
Keywords:
duty of care; duty to inform; good faith; organisation's duties; patere legem; respect for dignity;
Judgment 3962
125th Session, 2018
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to downgrade her, reassign her to another position and place her on an additional period of probation.
Considerations 10-11
Extract:
[T]he provisions of Article 13 [of the Service Regulations] were clear. A probationary period occurs in the three circumstances specified in the Article. None were the position the complainant was in at the time of, and as a result of, the decision of 7 January 2015 as implemented in early 2015 nor at the time of the impugned decision. Accordingly, the EPO was not entitled to place the complainant on probation and quite plainly was not entitled to say she could be dismissed under Article 13(4)(b). The decision to place the complainant on probation was unlawful.
[...]
The provision does not transmogrify incompetence into conduct in respect of which disciplinary action might be taken and a disciplinary measure imposed (see Judgment 918, consideration 11).
Reference(s)
Organization rules reference: Article 13 of the Service Regulations
ILOAT Judgment(s): 918
Keywords:
patere legem; probationary period; unsatisfactory service;
Judgment 3939
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 extend his appointment beyond the statutory retirement age.
Consideration 5(a)
Extract:
[A] breach of the Constitution [...] could not [...] constitute a breach by the author of the impugned decision of the principle tu patere legem quam ipse fecisti, according to which the Administration is bound by the rules it has itself established.
Keywords:
patere legem;
Judgment 3935
125th Session, 2018
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant accuses his former supervisor of moral harassment.
Consideration 16
Extract:
[T]he complainant’s contention that in this case UNESCO breached the time limits prescribed in the provisions governing the appeals procedure is well founded. [...]
It is true that, as UNESCO rightly points out, the failure to observe the aforementioned provisions of the Statutes of the Appeals Board did not seriously infringe the complainant’s rights, and the delays, some of which are attributable to the complainant, can partly be explained by the unusual complexity of the case. It should also be borne in mind that the Director-General’s final decision was preceded by discussions with the complainant aimed at reaching a settlement, which obviously delayed its adoption.
Nevertheless, the Organization was obliged, in accordance with the principle tu patere legem quam ipse fecisti, to adhere more strictly to the procedural time limits laid down in the Statutes of the Appeals Board. Its failure to do so caused the complainant moral injury, for which he legitimately claims redress (see, for similar cases, Judgments 3579, under 4, and 3688, under 11).
Reference(s)
ILOAT Judgment(s): 3579, 3688
Keywords:
delay in internal procedure; moral injury; organisation's duties; patere legem; time limit;
Judgment 3925
125th Session, 2018
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the rejection of his application for payment of language training fees.
Consideration 9
Extract:
The complainant [...] complains of the slow handling of his internal complaint. The Tribunal observes that whereas Article 92(2) of the Staff Regulations governing officials of the Eurocontrol Agency specifies a time limit of four months for the Director General to notify the person concerned of his reasoned decision, in this case such a decision was taken only after nine months. Although that length of time is not unreasonable in absolute terms, it nevertheless constitutes a breach by Eurocontrol of its own rules, which caused the complainant moral injury that likewise warrants redress.
Keywords:
delay in internal procedure; moral injury; patere legem;
Judgment 3921
125th Session, 2018
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges modifications to the grading and salary structure.
Consideration 9
Extract:
While good management practice would suggest such consultation is desirable, the case law of the Tribunal which has insisted on consultation and set aside decisions where there has been none (see, for example, the discussion in Judgment 3883, considerations 20 to 21) has been rooted in a legal obligation imposed by a normative legal document (for example, a staff rule or regulation) that the organisation consult a specified body in a specified way (see, for example, Judgments 3736, consideration 7, and 3449, consideration 7). It will be the terms of the normative legal document that will provide the yardstick by reference to which the content of the obligation to consult will be measured and whether it has been satisfied. Insofar as the complainant alleges that there has been a failure to consult without pointing to any legal requirement for such consultation, he has no cause of action and, in this respect, the complaint is irreceivable. In this respect the complainant does not, as the Global Fund argues, point to any non-observance of the terms of his appointment or of the Staff Regulations, to use the language of Article II, paragraph 5, of the Tribunal’s Statute.
Reference(s)
ILOAT Judgment(s): 3449, 3736, 3883
Keywords:
advisory body; cause of action; patere legem; staff representative;
Judgment 3918
125th Session, 2018
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his continuing appointment pursuant to the abolition of his post.
Consideration 6
Extract:
[H]aving established a procedural rule about the time the reassignment process should take, WHO was bound to comply with it (see, for example, Judgment 2170, consideration 14), whatever, in practical terms, might be thought to have been positive elements accruing to the complainant. There is no reason to doubt that the length of time taken did cause additional stress and anxiety to the complainant. For this, the complainant is entitled to moral damages assessed in the sum of 15,000 United States dollars.
Reference(s)
ILOAT Judgment(s): 2170
Keywords:
moral injury; patere legem; reassignment; time limit;
Judgment 3917
125th Session, 2018
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his continuing appointment pursuant to the abolition of his post.
Consideration 10
Extract:
WHO implicitly extended the reassignment period. Even though there is no established time limit within which a decision on reassignment must be taken following the end of the reassignment period, the Organization cannot wait more than three months before informing the person concerned of the decision. By doing so in this case, WHO failed to observe the time limit for the complainant’s reassignment pursuant to the Staff Rules and thus violated the principle of tu patere legem quam ipse fecisti (see, for example, Judgment 2170, under 14). The complainant is therefore entitled to compensation for moral injury.
Reference(s)
ILOAT Judgment(s): 2170
Keywords:
patere legem; reassignment; time limit;
Judgment 3916
125th Session, 2018
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his fixed-term appointment pursuant to the abolition of his post.
Consideration 5
Extract:
Staff Rule 1050.6 states that “[t]he reassignment period will end within six months from its commencement”. In this case, the complainant was notified of the abolition of his post on 17 January 2012 and the decision stating that the reassignment process had been unsuccessful was issued on 30 August 2012, seven and a half months later. Thus, the Organization implicitly extended the reassignment period. It cannot reasonably contend that this period ended on 18 July 2012, given that the complainant was not informed of the termination of his appointment until 30 August 2012. The Tribunal therefore considers that WHO failed to observe the time limit for the complainant’s reassignment pursuant to the Staff Rules and thus violated the principle of tu patere legem quam ipse fecisti (see, for example, Judgment 2170, under 14). The complainant is therefore entitled to compensation for moral injury.
Reference(s)
ILOAT Judgment(s): 2170
Keywords:
moral injury; patere legem; reassignment; time limit;
Consideration 11
Extract:
Pursuant to Staff Rule 1050.2, “[w]hen a post held by a staff member with a continuing appointment, or by a staff member who has served on a fixed-term appointment for a continuous and uninterrupted period of five years or more, is abolished or comes to an end, reasonable efforts shall be made to reassign the staff member occupying that post, in accordance with procedures established by the Director-General [...]”. In this case, it was therefore incumbent on the Organization to make every effort to reassign the complainant, who had been employed by WHO without interruption from 2004 to 2012, when his appointment was terminated. The Tribunal notes that by creating new posts to be filled solely through local recruitment, the Organization, through its own actions, limited the reassignment options of AFRO administrative officers, including the complainant, whose posts were abolished. In so doing, it restricted the opportunities for reassignment whereas it was incumbent on it to seek or expand them. WHO therefore failed to abide by its own rules.
Keywords:
abolition of post; patere legem; reassignment;
Judgment 3907
125th Session, 2018
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to abolish her post and terminate her fixed-term appointment.
Consideration 26
Extract:
In conclusion, pursuant to the Presidential Directive, the Principles and Procedures should have been promulgated by an Administrative Instruction or, arguably, by a Presidential Directive. As the promulgation of the Principles and Procedures by Information Circular was in violation of the Presidential Directive, they were without legal foundation and are, therefore, unlawful as are the decisions taken pursuant to the Principles and Procedures. It follows that the decisions to abolish the complainant’s position and to terminate the complainant’s appointment were also unlawful and will be set aside.
Keywords:
abolition of post; patere legem; publication;
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