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Judgment No. 133

Decision

1. The Organisation shall pay complainant damages amounting to 54,525 United States dollars, subject to deduction of 8,178.75 United States dollars, or a sum of 46,346.25 United States dollars, unless the complainant is assigned to a new post within a maximum period of six months in accordance with the terms of Staff Rule 104.15(b), his salary being paid as from 30 June 1967 up to the date of his reassignment.
2. The other submissions in the complaint are dismissed.
3. The costs incurred by the complainant in pursuing the present complaint, amount to 345 United States dollars, are awarded against the Organization.

Consideration 1

Extract:

The complainant produced a number of resolutions demonstrating the reactions of the staff to the measures taken; "the organization asks the Tribunal to rule on the admissibility of these documents", alleging that their production would constitute intervention by the staff association. "However [...] the documents in question [are] in no way improper; they are no more capable of influencing the Tribunal's decision than any of the other evidence submitted. They must be regarded as written evidence rather than as the statement of one of the parties or its representative. There is no cause to exclude them from the dossier."

Keywords

admissibility of evidence; appraisal of evidence; disclosure of evidence; testimony; oral proceedings

Consideration 5

Extract:

"The evidence produced does not establish that the organization fulfilled all its obligations in the matter." On three occasions account was taken of the complainant's candidature in respect of vacant posts. "Nevertheless, on each of these occasions, instead of simply considering the complainant's qualifications and appointing him to a post that he was capable of filling, the organization assessed the merits of the various applicants and thus followed the normal procedure. In so doing it complied with the letter of the Regulations, but it did not take account of the general principle* derived from [the applicable provision]". *Preference should be extended to deserving former staff members.

Keywords

complaint allowed; decision quashed; organisation's duties; vacancy; contract; fixed-term; abolition of post; reassignment; priority; termination of employment; subsidiary; material damages

Consideration 3

Extract:

"[A]s an organisational act the decision to deprive a staff member of his post lies within the Director-General's discretion and can be reviewed by the Tribunal only if it is in irregular form or tainted by procedural irregularity, or tainted by illegality or based on incorrect facts, or if essential facts have not been taken into consideration or conclusions which are clearly false have been drawn from the documents in the dossier. This is the case whenever such an act is taken for the sole purpose of removing a staff member for whose termination no other statutory reason can be found."

Keywords

abolition of post; termination of employment; judicial review; discretion; organisation's interest; misuse of authority

Consideration 5

Extract:

The complainant fulfilled the duties assigned to him in an exemplary manner over a period of 15 years. "He is now approaching 50, and would find it all the more difficult to secure employment outside the organization inasmuch as he has been engaged on specialised duties which have no counterpart in most national administrations or private organizations. He was therefore entitled to the treatment accorded to deserving former staff members, that is to say, he could claim appointment to any vacant post for which he was qualified, with priority over all other candidates."

Keywords

satisfactory service; abolition of post; reassignment; priority; termination of employment

Consideration 4

Extract:

"[I]t is consonant with the spirit of the Rules and Regulations that a staff member who has served the organization in a fully satisfactory manner for a particularly long period, and who might reasonably have expected to finish his career in the same organization, should be treated in a manner more appropriate to his situation. If he loses his post, he may claim to be appointed to any vacant post which he is capable of filling in a competent manner, whatever may be the qualifications of the other candidates [...]. This interpretation [...] take[s] account of the legitimate expectation of staff members [and] is not prejudicial to the organization itself, which has every interest in employing staff members who have shown themselves deserving of confidence over a long period of employment."

Keywords

legitimate expectation; satisfactory service; abolition of post; reassignment; priority

Consideration 3

Extract:

"[T]he evidence in the dossier shows that the abolition of the complainant's post, while not aimed at the complainant personally, formed part of the reorganisation measures taken in accordance with [a conference]. It is immaterial that the duties performed by the complainant were maintained and assigned to other staff members, since the abolition of the post was motivated by objective reasons which do not fall within the competence of the Tribunal."

Keywords

abolition of post; reorganisation; judicial review; discretion; organisation's interest

Consideration 2

Extract:

The complainant objects to the organization's failure to disclose certain documents until after the internal appeals procedure was under way. "It has not been established that either of these documents in any way influenced the decision to terminate the complainant's appointment. The alleged delay in producing them did not therefore constitute a violation of his right to be heard."

Keywords

lack of injury; organisation; internal appeals body; administrative delay; internal appeal; disclosure of evidence; right to reply; flaw

Consideration 5

Extract:

"The organization cannot claim to have discharged its responsibilities by offering [the] complainant a post in grade P.1/P.2 [...] even if [he] had continued to receive his P.3 salary, the duties attached to the post were of a lower grade than those he had formerly performed. He was therefore justified in refusing the offer."

Keywords

complainant; organisation's duties; grade; downgrading; abolition of post; reassignment; refusal



 
Last updated: 28.09.2017 ^ top