Judgment No. 2868
1. The Appellate Body's decision to dismiss the complainant's appeal is set aside, as is the decision to renew his contract for only six months.
2. The Centre shall pay the complainant all salary, allowances and other benefits that he would have received for a period of six months, save for home leave and related allowances, in respect of which the complainant would have no claim after his repatriation.
3. It shall pay him moral damages in the amount of 10,000 Swiss francs.
4. It shall also pay him costs in the amount of 5,000 francs.
5. All other claims are dismissed.
Considerations 12 and 13
"On the issue of receivability, the Centre contends that [...] the complainant was late in filing his appeal with the Board, and that his complaint is therefore not receivable."
"The Tribunal rejects this objection to receivability. [T]he Chairman of the Board advised the complainant that the Board had decided to grant his request for review of the administrative decisions despite the late filing of the notice of appeal. [T]he Appellate Body accepted the appeal and, as no objection was then taken, it is not open to the Centre to object before the Tribunal."
complaint allowed; complaint allowed in part; receivability of the complaint; internal appeals body; time limit; delay; time bar; staff regulations and rules; rebuttal
"The Centre [...] attempts to lend validity to the Executive Director's decision on the grounds of expediency and that the decision subsequently received the Board's approval. The Tribunal observes that the non-observance of a regulation cannot be grounded on expediency."
complaint allowed; complaint allowed in part; staff regulations and rules; breach; provision
"[W]ith respect to the Centre's assertion that this implementing measure was approved by the Council [...], the Tribunal observes that the adoption of a so-called "interpretative clarification" that purports to give the Executive Director the authority to take certain action cannot validate an earlier decision taken without the requisite authority."
complaint allowed; complaint allowed in part; enforcement; interpretation; executive body; misuse of authority
"The Centre argues that the complainant accepted the terms of the renewal for six months and is now precluded from challenging them. In effect, it argues that the complainant has waived his right to challenge the validity of the renewal. As the Tribunal observed in Judgment 592 [...] "[w]aiver of a right to bring an action may not be presumed". As well, "[w]aiver is binding only if it is express or clearly implied on the facts". In the present case, the complainant contested the validity of the impugned decision [...] and at no time did he formally waive his right to challenge the validity of the decision. He was also in a financially vulnerable position, faced with the prospect of unemployment if he did not accept the renewal of his contract. As well, he would have potentially left himself in a situation of not having the advantages accorded to an internal candidate in a subsequent competition for a vacant post. In these circumstances, in addition to there being no evidence of an express waiver, a waiver cannot be implied on the facts."
ILOAT Judgment(s): 592
waiver of right of appeal; good faith; extension; fixed-term; non-renewal of contract; acceptance
Considerations 35 and 36
"At the material time, the Centre had not formally adopted a procedure for the selection of candidates for vacant posts; however, it had developed a set of Guidelines."
"Although the Guidelines do not have the force of formally adopted regulations or rules, they are intended to foster a transparent selection procedure in which candidates are fairly evaluated against selection criteria. The process in the present case [...] undermines the credibility of the procedure and is an affront to the dignity of the complainant, who submitted his candidature in good faith and with the expectation that it would be considered in accordance with the procedure found in the Guidelines."
ILOAT Judgment(s): 1077, 2393
procedure; complaint allowed; complaint allowed in part; respect for dignity; competition; candidate; criteria; difference