Judgment No. 3144
1. The decision of the Director General of 14 January 2010 is set aside and the case is remitted to WIPO which shall proceed as indicated under 9.
2. The Organization shall pay the complainant damages in the amount of 10,000 euros.
3. It shall also pay her 3,000 euros in costs.
4. All other claims are dismissed.
complaint allowed; decision quashed; case sent back to organisation; performance evaluation
WIPO submits that the Tribunal has no competence to hear the complaint because, as a temporary employee, the complainant is not an official within the meaning of Article II of the Statute of the Tribunal. This objection is unfounded.
In two recent cases concerning WIPO the Tribunal recalled that it may rule on any employment relationship arising between an international organisation and its staff, whether under the terms of a contract or under Staff Regulations. If a decision to appoint an employee, or to terminate his or her employment, is challenged on the grounds that it affects the rights of the person concerned which the Tribunal is competent to safeguard, the Tribunal must rule on the lawfulness of the disputed decision. It is immaterial whether the employee in question was recruited under a contract and whether that contract was for a fixed term. In addition, the Tribunal has noted that paragraph (b) of the introduction to the Staff Regulations and Staff Rules, on which the Organization relied then and is again relying in this case, in fact refers to persons engaged for short-term service as “staff members” (see Judgments 3090, under 4, and 3091, under 10). Under Article II, paragraph 5, of the Statute of the Tribunal, this case law applies to any complaints alleging non-observance, in substance or in form, of the terms of appointment of officials and of provisions of the Staff Regulations.
ILOAT Judgment(s): 3090, 3091
competence of tribunal; ratione personae
The question as to whether any particular act, or a series of acts, amounts to harassment within the meaning of the Tribunal’s case law is one of fact to be answered only after careful consideration of the deciding factors and an examination of all the surrounding circumstances (see Judgment 2553, under 6). In the instant case, it must be found that when the Joint Grievance Panel drew up the report which formed the basis of the Director General’s decision to close the case, thus rejecting equally the arguments of both the complainant and her former direct supervisor, it did not commit any error open to censure by the Tribunal in its evaluation of the facts.
ILOAT Judgment(s): 2553
judicial review; harassment
No final decision was, however, taken on the complainant’s contestation of her performance appraisal. While the Administration could indeed criticise her for not complying with Office Instruction No. 19/2006, because she did not submit a rebuttal statement to the Rebuttal Panel, that did not in any way exempt it from passing on her contestation to the Panel, as its duty of care required of it. Failure to take that step resulted in a denial of justice, because the complainant was deprived of her right to have the form and substance of her contestation examined independently by the appointed body.
The complainant asks the Tribunal to find that, if these sums were to be subject to national taxation, she would be entitled to obtain a refund of the tax paid from the Organization. In the absence of any present cause of action, this claim must be dismissed.
cause of action; national taxation of the tribunal's award