Judgment No. 1193
1. THE DIRECTOR'S DECISION DATED 16 APRIL 1991 IS QUASHED.
2. THE COMPLAINANT IS REINSTATED AS FROM THE DATE OF TERMINATION OF HIS APPOINTMENT.
3. THE ORGANIZATION SHALL APPLY THE REDUCTION-IN-FORCE PROCEDURE TO THE COMPLAINANT IN ACCORDANCE WITH RULE 1050.2.
4. IT SHALL PAY HIM IN FULL ANY SALARY, ALLOWANCES AND OTHER BENEFITS DUE TO HIM UNDER HIS APPOINTMENT, LESS ANY INDEMNITY OR OTHER SUMS IT MAY HAVE PAID HIM ON ACCOUNT OF THE PURPORTED TERMINATION.
5. IT SHALL PAY HIM 1,000 UNITED STATES DOLLARS IN DAMAGES FOR MORAL INJURY.
6. IT SHALL PAY HIM $5,000 IN COSTS.
7. HIS OTHER CLAIMS ARE DISMISSED.
"The complainant has applied for oral proceedings so that he may 'explain facts that are not included in the documents'. He does not say what those facts are or why they may not be set out in his written submissions or what relevance they may have to the material issues. His application is therefore disallowed."
The complainant submits that the abolition of his post was unlawful in that it was an abuse of authority: the whole exercise was just a trick to get rid of him as a punishment for his defence of the staff's rights and was therefore in breach of his right of association. He further submits that the decision was taken in disregard of essential facts: since the duties of his post continue to be performed there was no need to abolish it. "The complainant fails to show that the impugned decision [...] was ultra vires or otherwise unlawful. His challenge on this score is rejected."
abolition of post; staff union; freedom of association
Under PAHO Staff Rule 1040 a career appointment can only be terminated after completion of the reduction-in-force procedure. The complainant submits that the notice of termination he got was premature inasmuch as the PAHO had not properly applied the reduction-in-force procedure. The Tribunal observes that "the Organization made no genuine effort to carry out the procedure properly and thereby to give the complainant the protection of the Staff Rules he was entitled to under the provisions on abolition of post." The Tribunal holds that "where a post is abolished compliance with the reduction-in-force procedure is a condition precedent to termination of the holder's appointment. Not being the outcome of a valid procedure, the notice of termination given to the complainant [...] was also invalid."
Organization rules reference: PAHO STAFF RULE 1040
procedure before the tribunal; complaint allowed; complaint allowed in part; decision quashed; due process; staff regulations and rules; post; abolition of post; termination of employment; notice; staff reduction
The complaint being allowed because of the procedural flaw, the complainant is reinstated as from the date of termination of his appointment and he must be given the benefit of proper compliance with the reduction-in-force procedure.