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Judgment No. 2861

Decision

1. The Secretary-General's decision of 4 October 2006 is set aside to the extent that it dismissed the complainant's claims of harassment.
2. The Secretary-General's decision of 28 September 2007 is set aside, as is his decision of 3 November 2006.
3. WMO shall pay the complainant the salary, benefits and other allowances that she would have received at grade P.5 from 3 November 2006 until 31 May 2007 and, unless already paid, the allowances that would then have been payable in respect of the non-renewal of her contract, all amounts to bear interest at the rate of 8 per cent per annum from due dates until the date of payment.
4. The Organization shall also pay the complainant exemplary, material and moral damages in the sum of 190,000 Swiss francs in accordance with considerations 105 and 106.
5. It shall pay the complainant's costs in the amount of 25,000 francs.
6. The complaints are otherwise dismissed.

Consideration 6

Extract:

"It is appropriate that all six complaints before the Tribunal be joined, notwithstanding that the complainant has objected to that course. The complaints are, to a large extent, interdependent."

Keywords

complaint; complaint allowed; complaint allowed in part; joinder

Consideration 27

Extract:

"[I]t must be taken to be normal practice in any international organisation to involve the Chief of a Section or Department in plans for its reorganisation. Not to do so would, ordinarily, constitute a serious failure to respect the dignity of that person."

Keywords

complaint allowed; complaint allowed in part; organisation's duties; respect for dignity; reorganisation

Consideration 37

Extract:

"It is not possible to characterise administrative decisions as harassment simply because they are unlawful. In this regard, it was pointed out in Judgments 2370 and 2745 that actions or decisions that result 'from honest mistake or even [...] inefficiency' cannot constitute harassment. And if administrative decisions are taken for improper purposes, that is a matter that is more appropriately dealt with by way of moral damages, rather than on the basis of harassment."

Reference(s)

ILOAT Judgment(s): 2370, 2745

Keywords

complaint allowed; complaint allowed in part; grounds; injury; good faith; intention of parties

Consideration 50

Extract:

"It is fundamental that a person not be punished twice for the same conduct or, more precisely for present purposes, that he or she not be subject to two separate and distinct adverse administrative decisions for the same conduct (see Judgment 934). As the complainant was subject to an adverse administrative decision, namely, a decision not to renew her contract on the basis of the matters relied upon in the [...] letter of 25 October 2006, it follows that the complainant's summary dismissal can be supported only on the basis of different conduct which, itself, amounted to serious misconduct or that, in some way, gave an added dimension to the conduct specified in the letter of 25 October so that it took on a more serious nature than previously was the case."

Reference(s)

ILOAT Judgment(s): 934

Keywords

complaint allowed; complaint allowed in part; decision; remand; non-renewal of contract; serious misconduct

Consideration 83

Extract:

"A decision not to renew a contract is a discretionary decision that can be reviewed only on limited grounds. Those grounds include that the decision is tainted by procedural irregularities, is based on incorrect facts or essential facts have not been taken into consideration or clearly false conclusions have been drawn from the facts. The complainant argues that the decision of 25 October 2006 should be set aside on the ground that it is a disguised disciplinary measure. It is clear from the terms of the letter of 25 October 2006 [...] that that decision was taken on the basis of what was considered to be misconduct. So much is confirmed by the complainant's subsequent summary dismissal based on the warning of 25 October 2006 [...]. However, in Judgment 1405, the Tribunal stated that '[s]ince disciplinary proceedings are irrelevant to non-renewal of a fixed-term appointment the complainant may not properly allege hidden disciplinary action'. Even so, where nonrenewal is based on misconduct, that misconduct must be proved. And if the decision has not been preceded by disciplinary proceedings, the obligation of good faith requires that an organisation at least give the staff member concerned the opportunity to answer the matters levelled against him or her. Indeed, unless that opportunity is given, the organisation will be at risk of proceeding on incorrect facts or without regard to essential facts or of drawing false conclusions."

Reference(s)

ILOAT Judgment(s): 1405

Keywords

complaint allowed; complaint allowed in part; decision; remand; evidence; good faith; organisation's duties; non-renewal of contract; misconduct; disciplinary measure; disciplinary procedure; hidden disciplinary measure

Consideration 89

Extract:

"There will be an award of moral damages [...], but account will be taken of the complainant's contributing behaviour."

Keywords

complaint allowed; complaint allowed in part; liability; moral injury; moral damages

Considerations 91 and 93

Extract:

"[T]he complainant seeks damages for the publication in the [Organization] monthly information bulletin that she had been separated from service, in the English version, and dismissed from service ('démise de ses fonctions') in the French version. The publication of this information was contrary to the Secretary-General's instructions but, even if published negligently, [the Organization] is liable for the damage occasioned to the complainant's reputation and dignity. In this regard, it was said in Judgment 2720 that 'international organisations are bound to refrain from any type of conduct that may harm the dignity or reputation of their staff members' (see also Judgments 396, 1875, 2371 and 2475). It was also pointed out in Judgment 2720 that that obligation extends to former staff members."
"There will be an award of material and moral damages in relation to the publication [...]. However, account will be taken of the facts that the publication resulted from negligence, not malice, that it was speedily withdrawn and that the Secretary-General apologised to the complainant. In Judgment 2720 mentioned above the Tribunal held that, in the case of a continuing duty of an organisation to refrain from any type of conduct that may harm the reputation or dignity of its staff members, the Tribunal may order performance of that duty, including by ordering the publication of material to restore a person's reputation. The complainant seeks an order of that kind in the present case. However, the Tribunal is satisfied that her honour and reputation will be sufficiently vindicated by this judgment and by an award of damages."

Reference(s)

ILOAT Judgment(s): 396, 1875, 2371, 2475, 2720

Keywords

complaint allowed; complaint allowed in part; material injury; moral injury; judgment of the tribunal; damages; negligence; organisation's duties; respect for dignity; compensation

Considerations 97, 98 and 99

Extract:

The complainant argues that she was discharged from the continuing obligation of confidentiality when her employment was unlawfully terminated.
"There is no doubt that an international civil servant is under an obligation of discretion (see Judgments 1608 and 1732)."
"In the present case, the complainant had unsuccessfully availed herself of internal appeal procedures with respect to the decision to reassign her to the post of Chief of IAS, her attempt to raise her claim of harassment had been rejected as 'abusive and ill driven' without investigation and her request for review of the decision not to renew her contract led to her summary dismissal. In these circumstances, it is to be doubted that there was a continuing obligation of complete discretion."

Reference(s)

ILOAT Judgment(s): 1608, 1732

Keywords

complaint allowed; complaint allowed in part; organisation's duties; respect for dignity; staff member's duties; duty of discretion; organisation's reputation; limits

Consideration 7

Extract:

[T]he question of harassment was raised in the complaint leading to Judgment 2742 but not then finally determined. The Tribunal noted that, by then, the complainant had filed a formal complaint of harassment with the Joint Grievance Panel and filed written submissions with it in support of her claim. The Tribunal indicated that principle “dictate[d] that a person cannot litigate the same issue in separate proceedings” and further noted that, although the complainant’s claim of harassment was properly before the Tribunal, its determination should await consideration of the other complaints which had then been lodged. As neither party argues for any other course, it is appropriate to proceed on the basis that the claim of harassment stood over by Judgment 2742 is subsumed in [V.] No. 4. It will, however, be necessary to refer again and in some detail to some of the matters that were discussed in that judgment.

Reference(s)

ILOAT Judgment(s): 2742

Keywords

duplication of proceedings



 
Last updated: 25.08.2017 ^ top