LEGAL TIPS
LAURENCE C. FAUTH *
1. Staff Members Holding Fixed-Term
Appointments Are Entitled to Reasonable
Notice of the Expiration of the
Appointment.
International organizations often argue that
staff members are not entitled to a notice
period since the contract of appointment
usually contains a clause stating the fixedterm
appointment shall expire automatically
without notice. The ILOAT recently addressed
a question regarding when and what
amount of notice is required to be given to a
staff member on a series of short-term contracts
when the rules do not require any notice
except in cases of termination. Judgment
No. 2531. In that case, the staff member had
been employed continuously for a period of
3 years on short term contracts. His contract
was not renewed and a post covering similar
duties was advertised and he applied. He
was given notice by letter 3 days before his
contract expired that it would not be extended
or renewed. The organization argued
that he was well aware that his contract
would not be renewed since he had been informed
of that fact first unofficially and then
officially 2 weeks before the expiration. It
also argued that the vacancy notice issued almost
a year prior constituted “reasonable
notice” required by the case law and the staff
member knew that if he was not selected he
would not continue working for the organization.
The staff member appealed the decision
not to extend his contract and the notice
period of 3 days.
The Tribunal upheld the decision not to extend
his contract. On the issue of notice, the
Tribunal noted that the specific terms of the
contract did not provide for any notice period.
However, since this staff member had
been continuously employed for over 3
years, the staff member was entitled to “reasonable
notice” before the decision. In the
past, the Tribunal has held that a reasonable
period of notice is required in order to allow
the staff member to exercise the right to appeal.
The Tribunal awarded three months
salary and benefits, and the costs of
the appeal.
It is important that staff members who challenge the primary decision not to extend an appointment also add a claim for lack of notice if the notice period is short. Most organizations have a policy (usually unwritten) of providing a reasonable notice period. In the case of the IAEA, for example, the notice is one year.
2. The Tribunal Reaffirms Principle that
Validly Contracted Same Sex Marriages
Must Be Recognized By International
Organizations
On 7 February 2007, the ILO Administrative
Tribunal published its rulings for its 102
session.
Among the significant rulings was a claim by an FAO staff member for entitlements for his same sex spouse, with whom he had validly contracted a marriage under the laws of the Netherlands. The administration denied his request for spousal benefits on the grounds that a few of the staff rules employed the terms “husband and wife”, and thus the term spouse, which was undefined, could only apply to staff members who are married to persons of the opposite sex. It further argued that it could not provide any benefits to the staff member until the matter was referred to its governing body and an amendment to the staff regulations and rules adopted. The Tribunal reiterated the principle, first stated in its Judgment No. 1715 issued in 1998, that in the absence of a definition of the term “spouse” in the staff regulations and rules, the status of spouse will flow from a marriage publicly performed and certified by an official of the State where the ceremony has taken place, such marriage being then proved by the production of an official certificate. Without expressly stating this it appears that the Tribunal also found significant that the FAO Council had already accepted the principle that the personal status of staff members for purposes of FAO’s entitlements is determined by reference to the law of the nationality of the staff member concerned, which is the general policy adopted by the UN. It rejected the argument that the decision was discriminatory since the issue was “controversial” in some member states and the FAO was acting properly in addressing those concerns. The Tribunal nonetheless awarded moral damages for the successive postponements.
In my view, the Tribunal did not stretch the law in this area any further. However, the Tribunal is not willing to find discrimination if the administration seeks prior approval from governing bodies. The question remains whether Judgment No. 2193 (rejecting the claim for a staff member’s same sex partner based on the French Civil Solidarity Contract) is still good law following the Tribunal’s Judgments 2449 and 2550 issued last summer, in which the Tribunal extended benefits to a staff members who had entered into a registered partnerships under Danish and German law.
In another significant case published last summer, which I review in my “Semi-Annual Review of ILOAT Cases” for the 101st session to be published soon, the Tribunal reiterated the principle that it is illegal to retaliate against staff members for exercising the right to appeal. Judgment No. 2540. The case is significant in that the Tribunal awarded exemplary (punitive) damages for the retaliation.
