Duty of care (645,-666)
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Judgment 5000
139th Session, 2025
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the “deemed rejection” of his request for an investigation into the alleged misconduct of the Assistant Director-General at the WHO Headquarters in Geneva; the determination by the Office of Compliance, Risk Management and Ethics that he had not suffered retaliation, and that he was not entitled to protection against retaliation; and WHO’s decision to accept his resignation which he claims constitutes constructive dismissal.
Consideration 26
Extract:
As to the Organization’s alleged failure to “publicly disassociate itself from [Mr G.]’s defamatory statements”, it is not necessarily the duty of an international organization, although it has in principle a duty to protect its staff members when they are exposed to public criticism in relation to their functions, to engage in public press releases in defense of or against them. However, in the circumstances of the case, taking into account the position of Mr G., who was Assistant Director-General, it was the Organization’s duty to publicly distance itself from his declarations, which otherwise could be perceived as attributable to the Organization. In this respect, there was a breach of the Organization’s duty of care. This does not justify the impugned decision to be set aside. However, this violation of the duty of care entitles the complainant to an award of moral damages.
Keywords:
duty of care; moral damages; moral injury;
Judgment 4948
139th Session, 2025
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: Le requérant conteste la décision de le suspendre de ses fonctions avec maintien de son traitement et avec effet immédiat.
Consideration 19
Extract:
S’agissant du troisième moyen du requérant, portant sur la violation alléguée des devoirs de sollicitude, de protection et de bonne foi de la CPI, ce dernier invoque diverses circonstances entourant la décision de suspension et sa mise en application afin de soutenir qu’il y aurait eu manquement à ces devoirs de la part de l’organisation dans les faits. Mais le Tribunal considère qu’au regard de toutes ces circonstances, l’intéressé n’établit pas de violation ou d’erreur qui relève du contrôle restreint auquel il est astreint et qui pourraient justifier son intervention quant à l’exercice du pouvoir d’appréciation du chef exécutif de l’organisation pour appliquer une suspension avec maintien du traitement et avec effet immédiat, ainsi que cela a été fait en l’espèce.
D’abord, le Tribunal a déjà expliqué en quoi la mesure de suspension était justifiée. La mauvaise application alléguée du principe de proportionnalité ne saurait donc constituer un manquement de la CPI à son devoir de sollicitude.
Ensuite, le requérant n’a pas établi un manquement de l’organisation à ses obligations en raison de la durée déraisonnable de la suspension, de sa publicité ou de sa soudaineté. Ainsi qu’il ressort du rapport de la Commission de recours et de la décision attaquée, à la date où cette dernière a été rendue, soit le 4 mai 2022, la durée de la suspension s’expliquait par la procédure de recours interne qui avait requis un premier examen par le Mécanisme et ensuite un processus devant la Commission de recours. Le délai d’environ sept mois qui s’est écoulé entre la date de l’application de la mesure et celle de la décision attaquée n’apparaît pas en soi déraisonnable et, au-delà de sa seule affirmation, l’intéressé n’établit pas en quoi cela pourrait être le cas. Le Tribunal ajoute que, dans le cadre de la présente requête, il n’est saisi que de la décision portant sur l’application de la mesure de suspension initiale d’une durée de trois mois, et non des deux décisions subséquentes de prolongation de cette suspension pour des durées respectives additionnelles de trois mois chacune. Dans le jugement 4658, au considérant 2, le Tribunal a relevé que, lorsqu’une mesure de suspension a été prolongée, c’est son rôle de déterminer si les conditions de chaque décision de prolongation sont remplies au moment où cette décision est prise (voir également à ce sujet le jugement 4586, au considérant 11). Il s’ensuit qu’il s’agit là de décisions définitives qui sont distinctes et qui, le cas échéant, doivent faire l’objet de requêtes distinctes.
Par ailleurs, il n’y a pas lieu non plus de conclure que l’organisation aurait diffusé la décision de suspendre l’intéressé aux collègues de ce dernier ou à l’extérieur de la CPI de manière à porter atteinte à son intégrité professionnelle. Le Tribunal a déjà reconnu que le fait d’informer les fonctionnaires d’un département d’une mesure imposée peut parfois être nécessaire au bon fonctionnement de l’organisation (voir, par exemple, le jugement 4237, au considérant 9). Le Tribunal considère que la manière dont l’annonce de la décision de suspendre le requérant a été faite demeurait adéquate dans les circonstances de l’espèce, ainsi que l’a d’ailleurs relevé la Commission de recours dans son rapport.
En ce qui concerne la circonstance que le requérant a été escorté hors des locaux de la Cour immédiatement après la décision de le suspendre, aucun élément de preuve versé au dossier ne vient appuyer l’assertion selon laquelle la mesure aurait été mise à exécution de manière déraisonnable. Là encore, dans le jugement 4831, au considérant 10, s’appuyant sur un jugement antérieur (voir le jugement 3649, au considérant 13), le Tribunal a rappelé que, si le fait d’être escorté hors des locaux de l’organisation peut être ressenti comme une expérience humiliante, procéder ainsi est parfois justifié et, en l’absence de conduite des représentants de l’organisation qui exacerberait cette humiliation (par exemple, en faisant escorter le fonctionnaire hors des bureaux par le personnel de sécurité), cela relève simplement de bonnes pratiques de gestion au même titre que le sont la désactivation immédiate du compte de messagerie ou l’interdiction d’accès aux installations de l’organisation.
Quant à la notification de la décision de suspension en remettant au requérant une notification écrite de celle-ci à son domicile, l’organisation a raison de souligner que ce document lui a été remis en main propre à son domicile afin de s’assurer qu’il le reçoive en temps utile et compte tenu du contexte où il ne se trouvait dorénavant plus dans les locaux de l’organisation. Ni les écritures ni les pièces dossier n’appuient l’affirmation du requérant selon laquelle la notification aurait été d’une extrême violence pour lui et sa famille du fait qu’elle aurait eu lieu au moment où sa fille était de retour de l’école.
Reference(s)
ILOAT Judgment(s): 3649, 4237, 4586, 4658
Keywords:
duty of care; judicial review; role of the tribunal;
Judgment 4935
139th Session, 2025
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decisions to abolish his position and terminate his appointment.
Consideration 4
Extract:
Firm precedent has it that in order to achieve greater efficiency or to make budgetary savings international organisations may undertake restructuring entailing the redefinition of posts and staff reductions. However, each and every individual decision adopted in the context of such restructuring must respect all the pertinent legal rules and in particular the fundamental rights of the staff concerned (see, for example, Judgment 3238, consideration 7). The case law also states that decisions concerning restructuring within an international organisation, including the abolition of posts, may be taken at the discretion of the executive head of the organisation and are consequently subject to only limited review. Accordingly, the Tribunal will ascertain whether such decisions are taken in accordance with the relevant rules on competence, form or procedure, whether they rest upon a mistake of fact or law, or whether they constituted abuse of authority. The Tribunal will not rule on the appropriateness of the restructuring, as it will not substitute the organisation’s view with its own (see, for example, Judgment 4004, consideration 2). Nevertheless, any decision to abolish a post must be based on objective grounds and its purpose may never be to remove a member of staff regarded as unwanted. Disguising such purposes as a restructuring measure would constitute abuse of authority (see, for example, Judgment 3582, consideration 6).
Reference(s)
ILOAT Judgment(s): 3238, 3582, 4004
Keywords:
abolition of post; discretion; duty of care; duty to substantiate decision; executive head; judicial review; limits; reorganisation;
Consideration 4
Extract:
[A] decision to abolish a post must be communicated to the staff member occupying the post in a manner that safeguards that individual’s rights. These rights are safeguarded by giving proper notice of the decision, reasons for the decision and an opportunity to contest the decision. The Tribunal has further stated that the need to give reasons in support of adverse administrative decisions arises precisely because the affected staff member must be given an opportunity of knowing and evaluating whether or not the decision should be timely contested (see, for example, Judgment 3041, considerations 8 and 9).
Reference(s)
ILOAT Judgment(s): 3041
Keywords:
abolition of post; duty of care; duty to substantiate decision; notice; notification; reorganisation; right of appeal;
Consideration 10
Extract:
The central question […] is whether IOM gave the complainant the required notification of the abolition of his post and the termination of his appointment. [T]he Tribunal does not impose on international organizations a duty to provide staff members whose positions are abolished with the full set of internal documents used as a basis for such decision. Rather, the Tribunal requires an organization to give such staff members notice within the required time and sufficient reasons for the decision to abolish their post and for any subsequent decision, including the termination of their appointment. This is the expressed purport of Regulation 9.4. It also accords with the well-settled case law that an international organisation necessarily has power to restructure, and, in so doing, may abolish posts. As well, it accords with the case law stated, for example, in consideration 7 of Judgment 3234, that a decision to abolish a post must be communicated to the staff member occupying the post in a manner that safeguards that individual’s rights and that these rights are safeguarded by giving proper notice of the decision.
Reference(s)
ILOAT Judgment(s): 3234
Keywords:
abolition of post; duty of care; duty to substantiate decision; notice; notification; reorganisation; right of appeal; termination of employment;
Consideration 16
Extract:
The complainant’s submission, in effect, that the P-4 position, which the Administration created, served the same overall functions as those attached to his P-3 position it replaced “though ostensibly with a few heightened responsibilities”, suggests, in line with IOM’s submission, that his abolished position and the created position were different in terms of the overall scope and expertise required. The complainant’s further suggestion that he could have occupied the created position, as he was qualified to do so, does not advance his case further. As IOM points out, he could have applied for the position but elected not to and he had no right to be directly promoted to it, as he suggests. It was within the discretion of the Director General to determine, as he did, that IOM’s interests required that new positions be filled through competition. The Tribunal finds no reason to depart from the JARB’s conclusion that it (the JARB) recognized that the decision to restructure RSC was based on operational needs, which required a position with a higher level of expertise at the higher P-4 grade, and that IOM had no obligation to promote the complainant to that position for which he had not applied.
Keywords:
abolition of post; appointment without competition; duty of care; reassignment; reorganisation;
Considerations 17-19
Extract:
[T]he complainant submits that, contrary to the case law, the internal appeal process was flawed and the Administration violated its duty to provide him with an effective internal appeal remedy because the JARB failed to examine the substance of his arguments. […]
[He] argues that the JARB “explicitly refused” to rule on whether the Administration violated its duty to reassign him, with the result that the impugned decision which accepted the JARB’s report was incomplete and flawed. […]
[…] In the present case, the JARB considered the pleas the complainant proffered in his internal appeal and rejected his submission that the obligation to find a possible reassignment for him had not been met by IOM. Notwithstanding that the JARB’s analysis of the complainant’s pleas was brief and concise, it was sufficiently clear, understandable and adequate to permit the complainant to pursue his complaint before the Tribunal.
Keywords:
appointment without competition; duty of care; judicial review; reassignment; report of the internal appeals body; right of appeal;
Considerations 20-21
Extract:
The case law states that an organisation has a duty to explore possible options or to make reasonable efforts for the reassignment of a staff member whose post has been abolished (see, for example, Judgments 2902, consideration 14, and 4097, consideration 9). In consideration 16 of Judgment 3908, the Tribunal stated that, while it has long recognized the right of an international organization to abolish positions, which will imperil the continuing employment of the occupants of those abolished positions, a concomitant of that right is an obligation to deal fairly with the staff who occupy those abolished positions. This obligation extends to finding, if they exist, other positions within the organisation for which those staff have the experience and qualifications.
Historically, the Tribunal generally considered the extent of an organization’s duty to reassign staff members whose positions were abolished mainly in relation to the type of contract they held, the nature of the post and/or the role to which they were assigned, their length of service with the organization, and recognized a greater duty in respect of staff who held permanent positions (see, for example, Judgment 3754, consideration 16). Nonetheless, in consideration 10 of Judgment 4097, the Tribunal stated that it does not follow that other classes of staff of differing status should be afforded no protection by principles it has developed in circumstances where their post is abolished and attempts are being made to reassign them.
Reference(s)
ILOAT Judgment(s): 2902, 3754, 3908, 4097
Keywords:
abolition of post; appointment; contract; duty of care; fixed-term; reassignment; reorganisation; temporary-indefinite;
Consideration 23
Extract:
The Tribunal is cognizant of the nature of the IOM’s funding structure as a project-based organization, which is significant, among other things, in that the employment of a large number of staff members is linked to the duration of the specific projects for which they are engaged. The Tribunal finds that in light of this, and IOM’s then discernible operational needs at that time, the Administration made reasonable efforts to reassign the complainant, thereby discharging its obligation and its duty towards him. Specifically, IOM invited the complainant to apply for vacant positions matching his qualifications and experience. IOM also considered other positions and reached out to eight other Missions and Regional Offices for the purpose of finding suitable reassignment options, but no available position matching the complainant’s qualifications and experience could be found. In the result, the complainant unsuccessfully applied for other positions. Against this background, the Tribunal cannot conclude that IOM violated its duty of care towards the complainant.
Keywords:
abolition of post; duty of care; project personnel; reassignment; reorganisation;
Judgment keywords
Keywords:
abolition of post; complaint dismissed; duty of care; project personnel; reassignment; reorganisation; right of appeal; termination of employment;
Judgment 4922
139th Session, 2025
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: Le requérant conteste la décision de classer sa plainte pour harcèlement moral à l’issue de la procédure d’évaluation préliminaire de celle-ci.
Considerations 8-11
Extract:
Le délai de recours était inopposable au requérant à un triple titre.
En premier lieu, il résulte d’une jurisprudence constante du Tribunal que la charge de la preuve de la notification d’une décision administrative incombe à l’organisation concernée (voir, par exemple, les jugements 3871, au considérant 9, 3034, au considérant 13, ou 2494, au considérant 4). En outre, il va de soi que cette notification n’est régulière que si elle permet au fonctionnaire intéressé d’avoir une connaissance exacte de la teneur de la décision en cause. Or, compte tenu des ambiguïtés, ci-dessus mises en évidence, que comportaient les indications fournies au requérant lors de la réunion du 5 décembre 2016, le Tribunal estime que, en l’espèce, la preuve d’une notification régulière de la décision prise par la Conseillère pour l’éthique n’est pas formellement rapportée, sachant que l’éventuelle notification officieuse dont celle-ci aurait fait l’objet ne saurait être reconnue comme valable. Dès lors, le délai d’un mois imparti par l’alinéa a) du paragraphe 7 des anciens Statuts du Conseil d’appel pour former une réclamation ne courait pas à l’encontre de cette décision.
En deuxième lieu, il sied de relever que, même si l’on admettait que la notification de la décision ait été régulière, le fait que Mme T. ait laissé sans réponse les courriels des 19 décembre 2016 et 10 janvier 2017 précités, et plus spécifiquement le premier, qui lui avait été adressé dans le délai d’un mois ainsi prévu, ferait obstacle à l’opposabilité de ce délai. Selon la jurisprudence du Tribunal, une organisation est en effet tenue, en vertu de son devoir de sollicitude à l’égard de ses fonctionnaires, de dissiper l’erreur dans laquelle se trouve un agent quant à l’exercice de son droit de recours, lorsqu’elle constate que celui-ci se méprend à ce sujet et qu’il serait encore possible pour lui d’agir en temps utile (voir, par exemple, les jugements 4369, au considérant 4, 2713, au considérant 3 d), et 2345, au considérant 1 c)). Dès lors qu’il ressortait du courriel du 19 décembre 2016, comme il a été dit, que le requérant n’avait pas compris qu’aucune décision écrite ne lui serait notifiée après la réunion, et étant donné que le délai de recours contre la décision du 5 décembre 2016 n’avait pas encore expiré à la date de ce courriel, il appartenait à la Conseillère pour l’éthique de clarifier ce malentendu afin de mettre l’intéressé à même d’user de son droit de recours. Le non-respect de cette exigence exclut, en tout état de cause, que la réclamation ultérieurement introduite puisse être regardée comme tardive.
En troisième lieu, il convient de souligner que […] le classement d’une plainte pour harcèlement relevait en réalité de la compétence de la Directrice générale, et non de celle de la Conseillère pour l’éthique. Or, il résulte de la jurisprudence du Tribunal que, lorsqu’il ne ressort pas clairement des indications données à un fonctionnaire que celles-ci constituent la communication d’une décision administrative, «il peut exister des circonstances qui amènent le fonctionnaire à conclure raisonnablement qu’il ne s’agit pas d’une décision définitive» et qu’il en va ainsi «surtout si [...] rien ne permet de penser que la question en cause a été examinée par une personne habilitée à prendre une décision définitive en la matière» (voir notamment les jugements 3861, au considérant 5, 3849, au considérant 8, et 2644, au considérant 8). Le Tribunal estime que, dans la mesure où la Conseillère pour l’éthique n’avait ainsi pas compétence pour procéder au classement de la plainte du requérant et où ce dernier pouvait dès lors légitimement douter que les explications données par Mme T. lors de la réunion du 5 décembre 2016 visaient à lui communiquer une décision prise par celle-ci à cet effet, le présent cas d’espèce relève de cette jurisprudence. En telle hypothèse, le délai de recours ne court à l’égard du fonctionnaire concerné qu’à compter de la notification ultérieure d’une décision formelle.
Reference(s)
ILOAT Judgment(s): 2345, 2494, 2644, 2713, 3034, 3849, 3861, 3871, 4369
Keywords:
administrative decision; duty of care; internal appeal; notification; time limit;
Judgment 4914
139th Session, 2025
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to close the investigation concluding that certain allegations against him were substantiated and to postpone the initiation of disciplinary proceedings until such time as he might be in a position to participate in such proceedings.
Consideration 13
Extract:
The Tribunal observes that, in the circumstances relevant to the complainant’s situation, the Global Fund had to reconcile many conflicting obligations.
On the one hand, it was bound to complete the investigation process within ninety days under the applicable provisions of the Employee Handbook, and, from an operational standpoint, the Tribunal accepts that it could not retain indefinitely the service of the appointed external investigator but had to close the matter at some point. In other words, the Global Fund could not realistically put on hold an investigation of this nature indefinitely.
On the other hand, it also had a duty of care towards the staff members who had reported the allegations of misconduct raised against the complainant to carry out the investigation diligently (see, in this respect, Judgment 4344, consideration 3).
Finally, the Global Fund had a duty to safeguard the complainant’s due process rights during the investigation as well as a duty of care towards him. A review of the record indicates that it did take many steps to fulfil these duties. In this regard, it duly notified the complainant of the initiation of the investigation process, it granted an exceptional extension of the investigation process in view of the complainant’s absence for health reasons, it proposed alternative ways of meeting more easily with the investigator, and it afforded opportunities to the complainant and his counsel to comment on the draft report as well as additional time to comment on the report. In addition, when the Administration informed the complainant of the outcome of the investigation, it made it very clear that it was to be noted that the outcome had not been discussed with him, as he had not participated in the investigation. It had indeed been indicated before that no adverse inferences would be drawn from his lack of participation in the investigation due to his health condition.
In notifying the complainant of the outcome of the investigation, the Global Fund furthermore emphasized that any future assessment of the case for potential disciplinary review would be postponed until the complainant was in a position to participate in the proceedings. As such, it is undisputed that before the closing of any disciplinary proceeding, the complainant would have been able to submit his comments, in accordance with the procedures set forth in Annex XII of the Employee Handbook.
In the Tribunal’s assessment, bearing in mind that adversarial proceedings would still have been ensured before the issuing of a final decision in a disciplinary process, in accordance with the Tribunal’s case law (see, for example, Judgment 4313, consideration 6), the Global Fund managed to maintain a reasonable and proper balance between conflicting requirements and it did not violate the due process rights of the complainant in acting as it did, or its duty of care.
At this juncture, the Tribunal observes that the complainant is mistaken to suggest that he was entitled to participate in the investigation in such a way that he could have, for instance, questioned or cross-examined himself, or through counsel, the persons that the investigator met at that stage of the process. The Tribunal’s case law does not support such an extensive right to an adversarial procedure at the investigation stage of the process as the complainant appears to be suggesting (see, for example, Judgment 4770, consideration 6).
Reference(s)
ILOAT Judgment(s): 4313, 4344, 4770
Keywords:
adversarial proceedings; due process; duty of care; investigation; right to be heard;
Judgment 4885
138th Session, 2024
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the abolition of his training duties.
Consideration 4
Extract:
In support of his claims, the complainant submits essentially that UNESCO could not lawfully abolish his training duties, since the performance of those duties, which had long been entrusted to him, should be regarded as intrinsically linked to his employment.
However, it follows from what was stated in consideration 2 [...] that the Tribunal could in any event only interfere with the decision to end those duties if that decision had a direct adverse impact on the complainant’s rights conferred by his terms of appointment. Yet the file shows that the duties in question were not specified in those terms. They were only added to his functions, as defined by those terms, when the internal training arrangements [...] were put in place.
Admittedly, the abolition of the duties in question would have nevertheless needed to be accompanied by financial compensation if it had also led to a substantial reduction in the complainant’s remuneration. Under the Tribunal’s case law, an organisation is required by its duty of care towards its staff members to provide such compensation where outsourcing seriously affects a staff member’s financial situation (see Judgment 3373, considerations 7 and 9). In view of the evidence on file, that is not the case here. The complainant emphasises specifically in his complaint that he performed his training duties without any financial compensation, from which it can be inferred that the abolition of those duties had no tangible consequences of this nature.
Reference(s)
ILOAT Judgment(s): 3373
Keywords:
cause of action; duty of care;
Judgment 4882
138th Session, 2024
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the refusal to grant him compensation, in the form of rest or in financial form, for the time spent putting on and taking off a compulsory service uniform.
Consideration 6
Extract:
[U]nder the Tribunal’s case law, the duty of care which an international organisation owes to its officials does not extend to the obligation to grant them a benefit to which they are not entitled – as is the case here under the applicable provisions – or to take special steps to exempt them from the normal application of rules (see, in particular, Judgments 3357, consideration 15, and 2986, consideration 36). Nor does the duty of care, which does not prevent an organisation from adopting rules that are less favourable to its staff than those previously in force, imply that the organisation is required, in such a situation, to make exceptions or adjustments to the new rules in question (see Judgment 3034, consideration 25). The fact that the introduction of a uniform imposed new constraints on security officers did not in itself entitle them to compensation for those constraints.
The position would admittedly be different, as an exception to the aforementioned case law, if the introduction of the reform in question had led to a serious deterioration in the financial situation of the staff members concerned (see Judgments 4465, considerations 12 to 18, or 3373, considerations 5 to 11). However, that is plainly not so in the present case, as the amount of the monthly pay received by security officers did not decrease in absolute terms.
Reference(s)
ILOAT Judgment(s): 2986, 3034, 3357, 3373, 4465
Keywords:
duty of care;
Judgment 4880
138th Session, 2024
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the abolition of his training duties.
Consideration 4
Extract:
In support of his claims, the complainant submits essentially that UNESCO could not lawfully abolish his training duties, since the performance of those duties, which had long been entrusted to him, should be regarded as intrinsically linked to his employment.
However, it follows from what was stated in consideration 2 [...] that the Tribunal could in any event only interfere with the decision to end those duties if that decision had a direct adverse impact on the complainant’s rights conferred by his terms of appointment. Yet, as the complainant himself notes in his written submissions, the duties in question were not specified in those terms. They were only added to his functions, as defined by those terms, when the internal training arrangements established in particular by the aforementioned memoranda of 16 June 2011 and 6 February 2017 were put in place.
Admittedly, the abolition of the duties in question would have nevertheless needed to be accompanied by financial compensation if it had also led to a substantial reduction in the complainant’s remuneration. Under the Tribunal’s case law, an organisation is required by its duty of care towards its staff members to provide such compensation where outsourcing seriously affects a staff member’s financial situation (see Judgment 3373, considerations 7 and 9). In view of the evidence on file, that is not the case here. The complainant emphasises specifically in his written submissions that he performed his training duties without any financial compensation, from which it can be inferred that the abolition of those duties had no tangible consequences of this nature.
Reference(s)
ILOAT Judgment(s): 3373
Keywords:
cause of action; duty of care;
Judgment 4863
138th Session, 2024
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision not to change her annual leave to certified sick leave and to place her on administrative leave without pay from 9 October 2019 until her summary dismissal on 13 December 2019.
Consideration 13
Extract:
The contention […] that [the complainant’s] placement on administrative leave was unlawfully retroactive is unfounded, having regard to the specific circumstances of the case. Retroactivity in this case was justified by the need to regularize the complainant’s leave status, as she had been absent from work as from 2 September 2019 with no entitlements.
The Tribunal also notes that her placement on administrative leave was consistent with the Organization’s duty of care, and achieved a reasonable balance between the interests of the Organization and those of the complainant.
Keywords:
administrative leave; duty of care; retroactivity;
Judgment 4855
138th Session, 2024
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the appointment of another official to the position of Deputy Director, Investment Centre Division, following a competition.
Judgment keywords
Keywords:
appointment; breach; competition; complaint allowed; complaint allowed in part; duty of care; duty to substantiate decision; moral damages; moral injury; selection procedure;
Consideration 17
Extract:
[I]n the result, the Director-General has not sufficiently motivated his decision to reject the conclusion and associated recommendation of the Appeals Committee that the Organization had breached its duty of care towards the complainant and should pay the complainant moral damages. Often, in cases of this type, the matter is remitted to the organisation to enable the executive head to motivate her or his decision. However, in the present case, the complainant has retired from the Organization and no apparent purpose would be served by requiring further reasons.
Keywords:
duty of care; duty to substantiate decision; impugned decision; remand;
Consideration 17
Extract:
[I]n this case, the moral injury occasioned by a failure to motivate a decision rejecting a recommendation of an internal appeal body is tolerably clear as is the Organization’s breach of its duty, as found by the Appeals Committee. The complainant is entitled to moral damages, which the Tribunal assesses in the sum of 12,000 euros.
Keywords:
breach; duty of care; impugned decision; internal appeals body; moral damages; moral injury; recommendation;
Judgment 4854
138th Session, 2024
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the appointment of another official to the position of Director, Office of Strategy, Planning and Resources Management, following a competitive selection process.
Consideration 17
Extract:
[I]n this case, the moral injury occasioned by a failure to motivate a decision rejecting recommendations of an internal appeal body, is tolerably clear as is the Organization’s breach of its duty of care, as found by the Appeals Committee. The complainant is entitled to moral damages, which the Tribunal assesses in the sum of 20,000 euros.
Keywords:
breach; duty of care; impugned decision; internal appeals body; moral damages; moral injury; recommendation;
Consideration 17
Extract:
[I]n the result, the Director-General has not sufficiently motivated his decision to reject the conclusion and associated recommendation of the Appeals Committee that the Organization had breached its duty of care towards the complainant and should pay the complainant moral damages. Often, in cases of this type, the matter is remitted to the organisation to enable the executive head to motivate her or his decision. However, in the present case, the complainant has retired from the Organization and no apparent purpose would be served by requiring further reasons.
Keywords:
duty of care; duty to substantiate decision; impugned decision; remand;
Judgment keywords
Keywords:
appointment; breach; competition; complaint allowed; complaint allowed in part; duty of care; duty to substantiate decision; moral damages; moral injury; selection procedure;
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.
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 4841
138th Session, 2024
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to abolish the post she used to hold and not to renew her contract beyond 31 December 2020.
Consideration 4
Extract:
[T]he Tribunal does not rule on the appropriateness of a restructuring process, unless and until it negatively affects a staff member in breach of staff rules and regulations. A line must be drawn between restructuring directions and decisions, which fall within the discretion of an organization, and individual decisions adopted as a consequence of a restructuring process. The Tribunal will assess whether such individual decisions comply with staff rules and regulations and the Organization’s duty of care. In the present case, there is no evidence that the Organization did not comply with rules and principles concerning the duty of care towards staff in case of restructuring exercises.
Keywords:
discretion; duty of care; judicial review; reorganisation;
Judgment 4836
138th Session, 2024
International Federation of Red Cross and Red Crescent Societies
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his non-selection for several positions.
Consideration 12
Extract:
[N]o steps were apparently taken to cancel the first selection process to which the complainant had applied, the complainant took his written test after the position had been readvertised and, as the complainant states, he was not so informed and was not informed that he was not selected. It also seems apparent, that the Federation thereby also breached its duty of care to the complainant.
Keywords:
duty of care; selection procedure;
Judgment 4831
138th Session, 2024
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the rejection of his claim for compensation for service-incurred illness.
Consideration 12
Extract:
In a case such as the present, it was not sufficient for the complainant to simply assert, on the strength of a series of emails from his own physician, that his illness was service-incurred because it was, according to him, directly caused by the events of 14 October 2019. In notifying the complainant of the opening of an investigation for misconduct and of his suspension pending the outcome of that investigation, and in accompanying him outside the building, the organisation was implementing administrative decisions provided for in its legal framework. It was incumbent on the complainant to show that, in the way these decisions were implemented, ITU did not respect its duty of care, with the result that his illness was not solely due to the inherently unpleasant nature of the decisions in question. This would have required him to submit a specific claim to ITU as to the way he had been treated on 14 October 2019 and to possibly request that an investigation be undertaken.
Keywords:
duty of care; illness; service-incurred;
Judgment 4829
138th Session, 2024
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to reject his compensation claim for service-incurred injury and illness as time-barred.
Consideration 10
Extract:
The Tribunal finds that the IAEA, pursuant to its duty of care, ought to have treated the complainant’s 5 December 2019 letter as the initiation of a compensation claim for a work-related injury. Therefore, it follows that the complainant’s claim was timely submitted under Appendix D and should be considered by the JABCC.
Keywords:
claim; compensation; duty of care; duty to forward appeal to competent body; illness; injury; service-incurred;
Consideration 9
Extract:
[T]he approach taken by the Director General in the impugned decision is problematic.
First, he erred in treating the complainant’s letter of 5 December 2019 as a letter merely “addressing return-to-work issues”. On the contrary, it is clear that in his 5 December 2019 letter the complainant intended to report his work-related accident to the IAEA and he did so about two months after the reported accident. This was within the four-month applicable time limit. In that letter, the complainant wrote: “Please accept this letter as written notice that on 4th of October 2019 I was involved in a work accident in my office”. The complainant also described the circumstances of his accident and the details of his treatment, and indicated that he might need further sick leave in the coming weeks. The letter was accompanied by a medical report of his status, diagnosis, and treatment. Interpreting a letter primarily focused on reporting a work-related accident, including by describing the circumstances thereof and attaching a medical report, solely as a sick leave request or a letter addressing return-to-work issues, overlooked its potential relevance to a compensation claim.
Second, according to the Tribunal’s well-established case law, part of an organisation’s duty of care towards its staff is to provide procedural guidance to a staff member who is mistaken in the exercise of a right insofar as that may allow them to take effective action. If there is still time, it must inform a staff member of the available means of redress (see Judgment 4369, consideration 4, and the case law cited therein). In addition, if a member of staff pursues a grievance by an incorrect procedure, but there is another procedure which would be appropriate, the organisation is under a duty to advise the staff member to follow the appropriate procedure (see Judgment 4006, consideration 13). Accordingly, an international organisation is under an obligation to clearly communicate to its staff members the appropriate procedures for submitting claims for compensation for service-incurred injuries or illnesses. This obligation is particularly important where procedural rules are unclear and could result in significant adverse consequences for staff members who are genuinely misguided on the procedures they must follow. As previously noted, Appendix D does not explicitly detail the procedural formalities for submitting a compensation claim for service-incurred injury or illness, such as its format or intended recipient. Therefore, the IAEA had a duty to provide procedural guidance to the complainant who was mistaken in the exercise of his right. Rather than penalizing him for procedural non-compliance, which at least in part stemmed from the lack of clarity in its own rules, the IAEA should have guided the complainant to follow the appropriate procedures.
The Tribunal is of the opinion that the VIC Medical Service should have forwarded the complainant’s 5 December 2019 letter to the DIR-MTHR, the competent body within the organisation. The necessity of forwarding to the competent body within the organization appeals addressed to the wrong body is articulated in Judgment 3034, consideration 15, as follows:
“[T]he procedural rules for lodging an internal appeal must not set a trap for staff members who are endeavouring to defend their rights; they must not be construed too pedantically and, if they are broken, the penalty must fit the purpose of the rule. For that very reason, an official who appeals to the wrong body does not on that account forfeit the right of appeal. In such circumstances this body must forward the appeal to the competent body within the organisation in order that it may examine it and the person concerned is not deprived of his/her right of appeal (see, in this connection, Judgments 1832, under 6, and 2882, under 6).” (See also Judgment 4140, consideration 6.)
This case law equally applies to the present case concerning a claim for compensation for service-incurred injury addressed to the wrong body. The duty to re-direct an incorrectly filed claim for compensation for a work-related injury or illness to the competent body within the organization is an integral part of the duty of care incumbent upon organisations. It is intended to ensure that staff members are not deprived of their right to compensation for service-incurred injury or illness because of procedural missteps which can easily be remedied by re-directing compensation claims to the competent authority.
Reference(s)
ILOAT Judgment(s): 1832, 3034, 4006, 4369
Keywords:
claim; compensation; duty of care; duty to forward appeal to competent body; illness; injury; service-incurred;
Consideration 13
Extract:
Regarding the complainant’s claim for moral damages, the IAEA’s failure in its duty to forward the complainant’s 5 December 2019 letter to the DIR-MTHR, the competent authority within the IAEA to be notified of work-related accidents and/or illnesses, has added to the delay in the final settlement of this case, whatever its eventual outcome may be (see Judgment 3674, consideration 10). This alone caused the complainant injury for which he is entitled to moral damages in the amount of 8,000 euros.
Keywords:
claim; compensation; delay; duty of care; duty to forward appeal to competent body; illness; injury; moral damages; service-incurred;
Judgment keywords
Keywords:
claim; compensation; complaint allowed; duty of care; duty to forward appeal to competent body; illness; injury; service-incurred;
Judgment 4782
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants filed an application review of Judgment 4484.
Considerations 7-8
Extract:
[T]he Tribunal recalled its statements in Judgment 2972 that payment should be made “to each complainant for so long as he works shifts outside normal working hours” and that it was clear from its terms that Judgment 2972 was not based on acquired rights or the working of night shifts, but on the Organisation’s “duty of care to ensure that the new arrangements did not cause financial hardship to [the complainants]”.
The foregoing analysis confirms that the rationale for the Tribunal’s determination, in consideration 8 of Judgment 4484, that its decision that the complainants’ claims were unfounded did not depend upon whether or not the complainants continued to work or were still engaged in performing shift work. This therefore had no substantial bearing on the decision to dismiss their complaints. Rather, as the Tribunal explained, it was satisfied that the Appeals Committee had correctly considered that the deductions the Office made from the complainants’ compensatory allowances in respect of their career progression were permissible and lawful because the adverse financial effects that the reorganisation had had on their incomes in 2005 had been mitigated after some ten years during which the EPO had slightly reduced the compensatory allowance, while maintaining the complainants’ income at a stable level. The EPO had thereby over that period of time discharged the duty of care it owed to the complainants.
Reference(s)
ILOAT Judgment(s): 2972, 4484
Keywords:
duty of care;
Judgment 4777
137th Session, 2024
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the calculation of his remuneration and the determination of his step following his promotion from grade G.6 to grade P.3.
Consideration 6
Extract:
[A]ccording to well-established case law of the Tribunal, the general principle of good faith and the duty of care demand that international organisations treat their staff with due consideration in order to avoid causing them undue injury and that an employer must consequently inform officials in advance of any action that might imperil their rights or harm their rightful interests (see Judgment 4072, consideration 8, and the case law cited therein). However, the Tribunal considers that this obligation to act in good faith and this duty of care do not – despite what the complainant submits to the contrary, without identifying anything in the Tribunal’s case law to substantiate his argument – extend to a requirement for the organisation to take the initiative to calculate the loss or gain in salary which might result from a promotion from a grade G post to a grade P post for any staff member interested in applying for such a promotion.
Reference(s)
ILOAT Judgment(s): 4072
Keywords:
duty of care; duty to inform; good faith; salary;
Judgment 4748
137th Session, 2024
International Olive Council
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his appointment at the end of his probationary period.
Consideration 7
Extract:
The [organization] violated its duty of care by failing to maintain a properly functioning appeal system, in breach of the applicable rules established by Articles 50 and 64 of the Staff Regulations [...]. Denying the complainant the opportunity to exercise his right to an effective internal appeal denied the fundamental safeguards provided by that right. Neither administrative inefficiency nor a lack of resources can excuse this failure. This is particularly important in a case involving the termination of employment, such as the present. If the appeal reveals that the termination decision was flawed, then, if it has been dealt with in a timely way, steps can be taken to reverse the effects of the termination, including reinstating the employee. As time passes, that outcome becomes increasingly difficult, for practical purposes, to achieve.
Keywords:
duty of care; internal appeals body; organisation's duties; right of appeal;
Judgment 4727
136th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant asserts that the EPO failed to assist him in his attempts to obtain corrected identity cards for his children.
Judgment keywords
Keywords:
complaint allowed; duty of care;
Considerations 6 & 10
Extract:
As regards the particular legal context of the present dispute, it must be noted that the issuing of identity documents or visas to persons enjoying the privileges and immunities conferred by the seat agreement of an international organisation is the prerogative of the host State. The only duty on the organisation in question in that regard is to provide its officials with the necessary assistance to ensure that the rights inherent in their status as members of staff of that organisation are complied with by that State. Furthermore, the organisation is free to choose how it approaches the authorities in order to discharge that duty. As a result, the organisation can only be liable for delays in a suitable visa or identity document being issued if it has acted in bad faith, behaved inappropriately in its relations with the host State or been negligent in monitoring the progress of the case (see, in particular, on these various points, Judgment 3510, delivered in connection with a previous complaint lodged by the complainant concerning the initial refusal of the Dutch authorities to grant an entry visa to his daughter S., considerations 9, 12 to 14, 17 and 18, and the case law cited therein).
[...]
Admittedly, as has already been stated, issuing identity cards is a matter for the authorities of the host State and it is clearly beyond the competence of the Tribunal to examine the conditions in which the authorities assume that responsibility.
Reference(s)
ILOAT Judgment(s): 3510
Keywords:
duty of care; host state; organisation's duties;
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