Judgment No. 2324
1. The decision of the Director-General of 9 December 2002 to take no further action beyond reinstating the complainant is set aside.
2. The OPCW is ordered to pay the complainant compensation in the sum of 25,000 euros.
3. It shall pay her costs in the amount of 3,000 euros.
4. The complaint is otherwise dismissed.
"It is not in doubt that the quashing or reversing of a decision may result in that decision being deprived of all legal consequences or effects. That is the case, for example, where a decision to withhold an automatic salary increment is reversed with effect from the date on which the increment would otherwise have been payable. In a case of that kind, the subsequent decision deprives the person concerned of a cause of action. And if there is no cause of action when a complaint is filed with this Tribunal, the complaint is, on that account, irreceivable. So much is clear from Judgments 1431 and 2065. But the mere fact that a final and substantive decision has been reversed or withdrawn does not deprive the previous decision of its character as a final and substantive decision."
ILOAT Judgment(s): 1431, 2065
complaint allowed; complaint allowed in part; decision; lack of injury; receivability of the complaint; cause of action; decision quashed; consequence; effect
Considerations 10 and 11
"[P]ursuant to Rule 5.3.01, only the Director General had authority to place the complainant on special leave with full pay [...] However, [...] it was the Director of Administration, not the Director-General, who wrote to the complainant and informed her that he was 'placing [her] on special leave with pay until further notice'. That letter contains no reference whatsoever to the Director General or to any discussions with the latter. And although, in her request for review, the complainant expressly contended that the Director of Administration had taken the decision in question, the Director-General did not say anything to the contrary in his reply. [...] That correspondence gives rise to the very strong inference that the decision was taken by the Director of Administration and not by the Director General."
Organization rules reference: Interim Staff Rule 5.3.01
complaint allowed; complaint allowed in part; decision; competence; evidence; presumption; special leave; delegated authority; executive head
"A decision to place a senior officer on leave with or without pay pending a review of his or her performance is one that inevitably affects that person's dignity and good name and, moreover, it is one that will almost certainly carry adverse consequences for his or her career. Where, as here, the decision is unlawful, the person concerned is entitled to compensation. However, the measure of compensation may vary according to whether, on the one hand, the decision might otherwise properly have been taken in the circumstances or, on the other, whether it appears to have been taken for an improper purpose." [See consideration 18 for the Tribunal's appreciation of the purpose.]
complaint allowed; complaint allowed in part; grounds; moral injury; amount; respect for dignity; proportionality; career; work appraisal; special leave; unpaid leave; misuse of authority; compensation