Judgment No. 3753
1. WHO shall pay the complainant 70,000 Swiss francs by way of material damages, less any amounts paid to the complainant as a result of the impugned decision.
2. WHO shall pay the complainant 15,000 Swiss francs by way of moral damages.
3. WHO shall pay the complainant 8,000 Swiss francs costs.
4. All other claims are dismissed.
The complainant, a former WHO staff member, contests the decision to terminate his fixed-term appointment pursuant to the abolition of his post.
abolition of post
WHO argues in its reply, correctly, that the complainant bears the burden of proving allegations of personal prejudice though it acknowledges, again correctly, that evidence of personal prejudice is often concealed and may rest on inferences drawn from all the circumstances (see Judgments 958, consideration 5, 1775, consideration 7, and 3380, consideration 9).
ILOAT Judgment(s): 958, 1775, 3380
burden of proof; personal prejudice
It is not for the Tribunal to resolve precisely why the position description was said to require fluency in Portuguese. However it cannot be entirely discounted that this was done to facilitate the appointment of the Portuguese speaking individual who ultimately filled the position. But, importantly, what occurred does support the complainant’s case that there had been a manipulation of the position description and the selection process.
The Tribunal concludes that the manipulation of the position description and the selection process denied the complainant a fair and reasonable opportunity to obtain an appointment to a new position as part of the restructuring process though the Tribunal acknowledges that there was no certainty he would have been appointed to a post […]. Nonetheless he is entitled to significant material damages.
Having regard, amongst other things, to the complainant’s age, grade and the status of his employment (fixed-term appointment) and the circumstances giving rise to the flaw in the process identified in the reasoning of the Tribunal, the Tribunal will award material damages [...].