Judgment 506
48th Session, 1982
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
The organization adopted a more flexible approach in the application of the new rule: "Those [officials] appointed before the Finance Committee made its recommendation, who before had been informed of the possibility of qualifying for non-local status, or might have been, were still able to obtain such status despite the wording of the rule. There was strict application only to those appointed after the recommendation. The distinction between those appointed before and those appointed after rested on the fact that the former, unlike the latter, had or might have had the expectation of qualifying for non-local status some day."
Keywords:
amendment to the rules; appointment; date; difference; enforcement; equal treatment; legitimate expectation; local status; non-local status; practice; promise; provision; staff regulations and rules;
Judgment 505
48th Session, 1982
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
The new rule came into force on 1 February 1975. Short-term officials recruited before this date, who were not then considered as non-local officials, were all given local status. The organization then distinguished between those officials who had been given short-term appointments before the end of October 1974 and those whose appointment was made between then and 1 February 1975. The former were given non-local status on the established terms and the latter were treated as local officials. "The difference in treatment between the two groups was warranted by the difference in the facts."
Keywords:
amendment to the rules; appointment; date; equal treatment; local status; non-local status; provision; staff regulations and rules;
Consideration 6
Extract:
The rule came into force on 1 February 1975, i.e. subsequent to the complainant's first short-term appointment. By refusing to grant the complainant non-local status, the Director-General based his decision on the fact that she did not benefit from such status on 1 February 1975, without taking account of what had happened before. "In other words, he did not apply the rule retroactively: he based his decision on the facts at the date when the rule came into force."
Keywords:
amendment to the rules; date; effective date; local status; non-local status; non-retroactivity; provision; staff regulations and rules;
Consideration 7
Extract:
Up until the end of October 1974, short-term officials "had or may have had the expectation of qualifying some day [for non-local status]. It was therefore fair to take account of that expectation and grant them non-local status on the terms established under the practice." After that date, officers recruiting short-term staff "were told to discontinue the practice of mentioning the possibility of qualifying for non-local status [...] in other words, the old practice was abolished, the result being that those who were [recruited after that date] had no reason to expect non-local status and could not claim it by virtue of the principle of equality."
Keywords:
amendment to the rules; equal treatment; legitimate expectation; local status; non-local status; practice;
Judgment 496
48th Session, 1982
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 36
Extract:
"It is enough to say that the absence of any evidence supporting the decision creates the suspicion that it was taken with improper motives and that such a suspicion is amply confirmed by consideration of the events leading up to it [...] The director wished to get rid of a [staff] committee which he believed to be unrepresentative. [...] The decision [...] can only be viewed either as an attempt to use coercion where persuasion had failed or as an expression of resentment at the failure. as such it is an abuse of power."
Keywords:
abuse of power; amendment to the rules; facilities; grounds; misuse of authority; staff union;
Consideration 34
Extract:
Within the limits determined by the organization's interests, "the Director has the widest discretion in determining the extent of the facilities which the organization offers to the staff association and in making from time to time such changes in them as he thinks to be desirable. Changes do not have to be negotiated and agreed [...]. [The Director] may not, as is the rule in all his decisions, act without taking all the relevant facts into consideration and he can hardly do that without ascertaining the views of the staff association. But after these have been considered, the decision is for him alone."
Keywords:
abuse of power; amendment to the rules; consultation; facilities; misuse of authority; organisation's duties; staff union;
Summary
Extract:
The Tribunal recognises the Director's right to alter the scope of the facilities extended to the staff association. However it reserves the right to set aside any modifications which have not been properly justified. It considers as unjustified the imposition on the staff association of the requirement that communications to be despatched through the organization's facilities should first be submitted to the administration. Furthermore, it considers as a violation of the right to freedom of association the cut in the organization's contribution to the expenses of the association.
Keywords:
amendment to the rules; discontinuance; discretion; facilities; freedom of association; grounds; judicial review; staff union;
Judgment 491
48th Session, 1982
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
The Staff Regulations stipulate that a contract "may not be altered by implied or even oral agreement. The organisation may be wrong to require an official - who wishes after all to keep his employment - to provide services not stipulated in his contract. But this is not the case here."
Keywords:
amendment to the rules; contract; formal requirements; organisation's duties; terms of appointment;
Judgment 490
48th Session, 1982
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
Vide Judgment 491, consideration 5.
Reference(s)
ILOAT Judgment(s): 491
Keywords:
amendment to the rules; contract; formal requirements; organisation's duties; terms of appointment;
Judgment 486
48th Session, 1982
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 4 and 8
Extract:
The complainant was promoted from GS to P. This change was not an appointment. Under the stated policy of the organization such a promotion justified a review of the place of residence. But such a statement of practice "must not conflict with the rule which it is elaborating". The applicable provision stipulates that the place determined at the time of appointment should be recognised throughout the service. "This forbids the change of residence which the complainant is asking the Tribunal to order."
Keywords:
amendment to the rules; contract; enforcement; general service category; local status; practice; professional category; promotion; provision; residence; staff regulations and rules;
Considerations 7-8
Extract:
It is organization policy to treat a promotion from GS grades to P category as justifying a review of the place of residence. "There is ample evidence that this was the stated policy, though [...] there is no evidence in the dossier of the policy being put into practice. [...] The question is therefore whether it is within the competence of the Tribunal to enforce a rule of policy or practice." A statement by the Director-General explaining a practice which he intends to follow can under certain circumstances create a contractual obligation arising out of the relationship created by the appointment. The Tribunal is competent to hear the complaint.
Keywords:
amendment to the rules; binding character; competence of tribunal; contract; general service category; practice; professional category; promotion;
Judgment 465
47th Session, 1982
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3
Extract:
At the end of each period of employment there should be an opportunity to review the terms of the expiring contract. "A radical recasting of the terms might be treated as constituting a break of a kind warranting the grant of an allowance. Subject to review by the Tribunal, however, the organisation may, with due regard to its own interests and to the staff member's rights, offer new contractual terms [...] not every offer will be such that the staff member who declines it and leaves may claim the indemnity: it is all a matter of degree."
Keywords:
amendment to the rules; consequence; contract; material damages;
Consideration 4
Extract:
The organisation's offer to convert the complainant's fixed-term contract into a contract without limit of time was not arbitrary. It was evidence of the organisation's view "that it need no longer reconsider at regular intervals whether or not to employ him" and evidence therefore of its confidence in him. "Had he accepted [the organisation's] offer it could have got rid of him only if he had committed a disciplinary offence. He would have enjoyed greater employment stability and yet would still have had the right to terminate the contract at any time. His obligations [...] would [...] have been no greater."
Keywords:
amendment to the rules; complainant; contract; fixed-term; offer; organisation; permanent appointment; refusal; security of tenure;
Judgment 462
46th Session, 1981
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
The essential condition for continued payment of the allowance is continued proficiency. The method by which such proficiency is to be ascertained is not of the essence. The Director-General's changing the method does not constitute arbitrary deprivation of an acquired right.
Keywords:
acquired right; allowance; amendment to the rules; condition; knowledge of languages;
Consideration 5
Extract:
The possibility of obtaining a language allowance under certain conditions is not ordinarily a matter of decisive importance to a new recruit. It is therefore not an acquired right in the sense of the case law. A staff member may be said to acquire the right to the allowance under the terms of the rules in force at the time he earns it. Accordingly, the rules should not be changed so as to deprive officials of such a right arbitrarily.
Keywords:
acquired right; allowance; amendment to the rules; knowledge of languages; provision; staff regulations and rules;
Judgment 459
46th Session, 1981
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 2
Extract:
"Either the view is taken that the contract may be amended only by common consent of the parties, and the Tribunal may not require any amendment of the contract. In that case, [as] the organization has refused [the amendment submitted by the complainant], the Tribunal may not interfere. The alternative view is that the Tribunal may have the parties make the amendments required by the application of the principle of good faith".
Keywords:
amendment to the rules; contract; good faith; tribunal;
Considerations 1-2
Extract:
"Upon receiving an appointment a staff member is required to give the date of his birth. The date so recorded in the contract of appointment may affect his rights and obligations in a number of ways; certainly it settles the date on which he is due to retire." The complainant may not rely on the principle of good faith "since in any case, when the first correction of date was made, he ought to have taken every precaution to determine the exact date of his birth."
Keywords:
amendment to the rules; date of birth; good faith; organisation; refusal; staff member's duties;
Judgment 444
46th Session, 1981
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 1
Extract:
Assurances were allegedly given that the complainant's temporary contract would be replaced by a fixed-term contract. This was done later than expected and the complainant suffered some financial loss. However, he does not prove that the assurance he allegedly received was anything more than an expression of hope and belief.
Keywords:
administrative delay; amendment to the rules; burden of proof; contract; duration of appointment; fixed-term; lack of evidence; promise; short-term;
Judgment 441
45th Session, 1980
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
The International Patent Institute was integrated into the European Patent Organisation. The applicable provisions do not provide for the reimbursement of travel expenses. The abolition of the allowance, which was paid the complainant in the past and which was a considerable advantage for him, may have prompted him to accept his appointment. This suggests the breach of an acquired right. The complainant is entitled to the reimbursement of the cost of travel on home leave for himself and his family.
Keywords:
acquired right; allowance; amendment to the rules; discontinuance; home leave; merger; provision; refund; staff regulations and rules; terms of appointment; travel expenses;
Judgment 431
45th Session, 1980
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
The complainant relies on a practice whereby inspectors who have given satisfactory service for two years would normally have their appointments renewed for five-year periods. "That is only a general practice [...] not a binding rule. In other words, it neither laid any obligation on the Director-General in this case nor conferred any right on the complainant."
Keywords:
amendment to the rules; binding character; contract; duration of appointment; extension of contract; five-year review; fixed-term; practice;
Judgment 429
45th Session, 1980
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
"Only the body empowered to amend Staff Regulations may determine whether the amendments it adopts are desirable. That is a matter for the governing bodies of the organisation, not the Tribunal, to decide."
Keywords:
amendment to the rules; competence; competence of tribunal; staff regulations and rules;
Judgment 425
45th Session, 1980
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 4 and 6
Extract:
The Tribunal decides that the complainants are entitled to be graded at the higher grade provided for in a post description and which reflects their actual duties. These descriptions, which are provisional, are binding on the organisation until amended. The organisation may review the post descriptions and return the complainants to their present grade. "Such a decision would not impair their acquired rights since they are not entitled to preserve the position arising under this judgment."
Keywords:
acquired right; amendment to the rules; grade; organisation's duties; post classification; post description;
Judgment 417
44th Session, 1980
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 19
Extract:
The Tribunal believes that the complainant was expressly excluded, by his contract of employment, from participation in the Pension Fund. An alteration in the contract could be made only by mutual consent. The Tribunal treats a letter addressed to the complainant as "an offer, which the organization was rightly confident would be accepted to remove the exclusion clause".
Keywords:
amendment to the rules; contract; offer; organisation; participation excluded; pension; unjspf;
Consideration 12
Extract:
"It is not necessary to decide that in all circumstances and for all purposes a notice of personnel action is part of the contract of employment. On the face of it is a summary in a convenient form of what a concluded contract contains. If the form contains provisions that are not in the concluded contract, the staff member could refuse to sign it as unacceptable. If he signs it as acceptable, it must depend on the circumstances whether or not any new matter is to be treated as supplementing the [...] contract and thus becoming part of it."
Keywords:
amendment to the rules; contract; elements;
Consideration 12
Extract:
A new provision as well as an [indirect] amendment to his contract allowed the participation of the complainant in a pension fund. He may not validate prior service because his earlier participation was specifically excluded under the terms of his contract of employment, such a situation having been provided for by the material provisions.
Keywords:
amendment to the rules; contract; participation; participation excluded; pension; unjspf; validation of service;
Judgment 414
44th Session, 1980
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 2
Extract:
"Although such a change is not expressly provided for in any text, it is by no means precluded. There is nothing to prevent an official who has left the organisation for some reason or other from being reappointed and it is therefore equally admissible to replace one kind of appointment with another."
Keywords:
amendment to the rules; contract; duration of appointment; fixed-term; permanent appointment;
Consideration 4
Extract:
The organisation experienced financial difficulties and reduced the number of posts. Efforts were made to reassign the complainant, whose contract without limit of time had been replaced by a fixed-term appointment. The "lack of success [of these efforts] does not mean that the [organisation] failed in its obligations. indeed it was only to be expected in the circumstances. [...] There is no evidence to suggest that it appointed staff members less well qualified than he to duties which might have suited him."
Keywords:
abolition of post; amendment to the rules; budgetary reasons; contract; duration of appointment; fixed-term; organisation's duties; permanent appointment; reassignment; staff reduction;
Judgment 409
44th Session, 1980
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations
Extract:
"The principle is not of course that all staff members must be equally treated; this would mean the abolition of grades. The principle is that all staff members in similar circumstances must be similarly treated. When, as here, there is a change in the rules, the circumstances change and the principle does not apply."
Keywords:
amendment to the rules; equal treatment; general principle; limits; provision; staff regulations and rules;
Judgment 405
43rd Session, 1980
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 1
Extract:
It appears from the dossier that "the sole reason for the action taken with regard to the complainant [change of duties] was the desire of the chief of the department to employ his subordinates more efficiently. The Tribunal will not review the supervisor's appraisal of the complainant's performance provided that [...] he acted solely in the interests of the organisation."
Keywords:
amendment to the rules; assignment; discretion; judicial review; organisation's interest; work appraisal;
Judgment 404
43rd Session, 1980
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 1(D)
Extract:
No provision provides for converting an appointment of indeterminate duration into a fixed-term one. "There is neither any general principle of law nor any provision of the Staff Regulations nor any term of her contract of appointment which precludes such a change of status."
Keywords:
amendment to the rules; contract; duration of appointment; fixed-term; no provision; permanent appointment;
Judgment 391
43rd Session, 1980
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"A right is acquired when he who has it may require that it be respected notwithstanding any amendments to the rules." Either of the following circumstances may give rise to an acquired right: a) "a right should be considered to be acquired when it is laid down in a provision of the Staff Regulations or Staff Rules and is of decisive importance to a candidate for appointment"; b) "a right will be acquired if it arises under an express provision of an official's contract of appointment and both parties intend that it should be inviolate."
Keywords:
acquired right; amendment to the rules; condition; contract; definition; provision; staff regulations and rules; terms of appointment;
Considerations 11 and 13
Extract:
The organisation imposed four days of unpaid leave on officials. The provisions which relate to exceptions and amendments to the Staff Regulations do not preclude the application of the provision respecting the amendment of contracts of employment, and upon which the organisation acted. This provision takes precedence over the text which enumerates the list of deductions.
Keywords:
amendment to the rules; contract; enforcement; provision; staff regulations and rules;
Consideration 14
Extract:
The organisation imposed four unpaid days of leave on officials over a period of six months. "It is immaterial that the decision made no formal amendment to the Staff Regulations or to individual contracts of employment of the staff members to which it applied. First, it was a temporary measure, and so there was no question of amending the Staff Regulations. Secondly, what happened was that individual contracts of employment were subject to implied amendment for a period of six months, as provided for" in the provision concerning the modification of contracts.
Keywords:
amendment to the rules; compensatory measure; contract; deduction; formal requirements; leave; reduction of salary; salary; staff regulations and rules;
Consideration 7
Extract:
The amount of salary is contractual and is immune to amendment only if the parties intend that it should be inviolate. "At the time when the complainants' basic salary was determined and later when it was adjusted, the parties are unlikely to have had in mind the circumstances [which led to the impugned decision]. "But, had they done so, would they ordinarily have intended that the amount of remuneration should be inviolate?"
Keywords:
acquired right; amendment to the rules; amount; contract; salary;
