Judgment No. 1929
1. THE DIRECTOR-GENERAL'S DECISION OF 11 DECEMBER 1998 IS SET ASIDE.
2. THE CASE IS SENT BACK TO THE DIRECTOR-GENERAL SO THAT IT CAN BE RESUMED AS INDICATED UNDER 9 AND 10.
3. THE UNION SHALL PAY THE COMPLAINANT THE SUM OF 5,000 SWISS FRANCS IN COSTS.
4. ALL HIS OTHER CLAIMS ARE DISMISSED.
"Compulsory transfer of a disciplinary nature must afford the staff member the safeguards available in the case of disciplinary sanctions, that is the right of the staff member to be heard before the sanction is ordered, with the option for him to participate in the full processing of the evidence and to make all his pleas. [...] It matters little in this respect whether or not transfer is envisaged among the disciplinary sanctions set out in the Staff Regulations. What is decisive is whether the transfer appears to be the consequence of the alleged professional shortcomings of the staff member which may, by their nature, give rise to disciplinary sanctions."
complaint allowed; complaint allowed in part; right to reply; organisation's duties; staff member's interest; staff regulations and rules; transfer; disciplinary measure; hidden disciplinary measure; safeguard
The complainant was transferred without prior notice and without an opportunity to be heard. "Taken together, the material circumstances give grounds for considering that the impugned transfer partly constituted a hidden disciplinary sanction. [...] The impugned decision must, therefore, be set aside and the procedure resumed from the point at which it was flawed [...]."
Organization rules reference: ARTICLE 10 OF THE UPU STAFF REGULATIONS
complaint allowed; complaint allowed in part; remand; case sent back to organisation; right to reply; organisation's duties; staff member's interest; staff regulations and rules; transfer; disciplinary measure; hidden disciplinary measure
"It is not in the interests of the complainant to seek a ruling in law [...] when in practice he can obtain the quashing of the decision and redress."
claim; complaint allowed; complaint allowed in part; receivability of the complaint; judgment of the tribunal; decision quashed; right