Judgment No. 2229
1. THE IMPUGNED DECISION OF 11 MARCH 2002 IS SET ASIDE.
2. THE MATTER IS SENT BACK TO THE DIRECTOR-GENERAL FOR A NEW DECISION IN ACCORDANCE WITH CONSIDERATION 5.
3. THE ORGANIZATION SHALL PAY THE COMPLAINANT 10,000 EUROS IN MORAL DAMAGES.
4. IT SHALL PAY HIM 3,000 EUROS IN COSTS.
5. ALL OTHER CLAIMS ARE REJECTED.
Consideration 3 A)
"A transfer of a non-disciplinary nature is subject to the general principles governing all decisions affecting an official's status. It must show due regard, in both form and substance, for the dignity of the official concerned, particularly by providing him with work of the same level as that which he performed in his previous post and matching his qualifications (see, for example, Judgments 1496, 1556, 1972 [...]). The transfer may be motivated by the need to eliminate tensions compromising the functioning of a department (see, for example, Judgments 132, 1018 and 1972)."
ILOAT Judgment(s): 132, 1018, 1496, 1556, 1972
complaint allowed; complaint allowed in part; decision; grounds; status of complainant; international civil servant; formal requirements; case law; general principle; organisation's duties; respect for dignity; assignment; transfer; grade; post held by complainant; post; working relations; organisation's interest; discontinuance; effect; same
Consideration 3 A)
"A transfer of a disciplinary nature must afford the staff member the safeguards available in the case of disciplinary sanctions, that is the right to be heard before the sanction is ordered, with the opportunity for the staff member concerned 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 amongst the disciplinary sanctions set out in the staff regulations. What is decisive is whether the transfer appears to be the consequence of alleged professional shortcomings [...] which may [...] give rise to disciplinary sanctions (see Judgments 1796, 1929 under 7, 1972 under 3 and 4, and the cases cited therein)."
ILOAT Judgment(s): 1796, 1929, 1972
complaint allowed; complaint allowed in part; international civil servant; formal requirements; evidence; disclosure of evidence; case law; right to reply; organisation's duties; staff regulations and rules; transfer; misconduct; participation; disciplinary measure; consequence; safeguard
Consideration 3 B)
"In accordance with the principles relating to the protection of information, staff members are entitled, even outside the context of a dispute, to have access to significant information concerning them which is in the possession of the administration [...] This applies a fortiori in the context of a procedure in which such information is used to support a decision affecting a staff member. There are, however, special cases in which higher dictates preclude its disclosure (on this issue, see Judgment 1756, under 10(b)). A provision [...] which stipulates that the reports of joint disciplinary committees or other boards of enquiry are confidential, cannot be construed as preventing the disclosure of such reports to a staff member adversely affected by a measure taken against him. otherwise, the higher principle of the right to be heard would be violated."
ILOAT Judgment(s): 1756
complaint allowed; complaint allowed in part; decision; international civil servant; cause of action; advisory body; report; exception; confidential evidence; inquiry; case law; general principle; right to reply; breach; interpretation; provision; effect; right
Consideration 3 (A)
"According to the Tribunal's case law, transfer decisions, which have been initiated by the administration and not at the staff member's request, may be disciplinary, non-disciplinary (in the interests of the organisation, independently of any fault) or even mixed in nature. [...] A transfer dictated by the interests of the organisation but which is also disciplinary in nature must clearly also comply with the specific rules protecting staff members in the case of disciplinary decisions (see Judgment 1929 [...])."
ILOAT Judgment(s): 1929
complaint allowed; complaint allowed in part; decision; international civil servant; formal requirements; case law; organisation's duties; transfer; disciplinary measure; organisation's interest; safeguard