Judgment No. 3422
1. The Global Fund shall pay the complainant 5,000 Swiss francs as moral damages.
2. The Global Fund shall pay the complainant 15,824.20 Swiss francs being the residual amount due to him on his separation, plus interest at the rate of 5 per cent per annum from the date of separation.
3. The Global Fund shall also pay the complainant 3,000 Swiss francs in costs.
4. All other claims are dismissed.
The Tribunal found that the Global Fund breached its duty of care towards the complainant and that his separation entitlements were not sufficient.
surrejoinder; abolition of post
[The complainant submits that] the composition of the selection panel was flawed. One member of the panel was a person who had been two levels below him in the administrative hierarchy and the complainant had sided with this person’s first level supervisor in not increasing her performance rating. She was thus, the complainant submits, “in a conflicted position”. The complainant also points to the fact that the majority of the members of the selection panel were more junior than him and not able to effectively evaluate his qualifications, experience and performance. Also, changes were made to the recruitment panel which he had not been afforded the opportunity to challenge. Several other specific complaints were made by the complainant about the selection process. However what the complainant singularly fails to do is demonstrate that it is probable some or a number of members
of the selection panel were biased against him or that the panel or selection process was otherwise flawed.
composition; burden of proof; selection board; flaw; bias
It is not in dispute that the Global Fund erred in announcing that Mr B. would temporarily occupy the newly created position of Unit Director, Africa and the Middle East [to which the complainant had applied] at a public meeting before informing the complainant personally. While the complainant received an apology both orally and in writing, it cannot be doubted that this breach of the duty of care had a negative effect on the complainant for which he is entitled to moral damages.
moral injury; duty of care
However the method used to calculate the final payments made, as reflected in the payslips, is peculiarly within the knowledge of the employing organisation.
burden of proof
In its surrejoinder, the Global Fund raises a plea that his claim for underpayment should have been, but was not, raised in the internal appeal. However, this plea should have been raised by the Global Fund in its reply. It was not and is not a plea to which the complainant has had an opportunity to respond. Accordingly, it is disregarded.
new plea; surrejoinder
[T]he foundation of the recommendation to pay compensation [...] was much broader than the narrow issue of whether the complainant would shortly gain other employment after leaving the Global Fund. Accordingly even if there was some mistake of fact upon which the Global Fund acted and the recovery of monies paid on the mistaken fact was actionable in the Tribunal by way of counterclaim (matters about which the Tribunal expresses no view), it is not demonstrated that the money actually paid was based on that specific mistake. Accordingly the counterclaim should be dismissed.