Judgment No. 3450
1. The impugned decision of 31 August 2011 and the contested appointment of Ms N. are set aside in accordance with consideration 12.
2. The ILO shall pay the complainant damages in the amount of 9,000 Swiss francs.
3. It shall pay her costs in the amount of 1,000 Swiss francs.
4. The ILO shall ensure that Ms N. is shielded from any injury which might result from the cancellation of her appointment.
5. All other claims are dismissed.
The Tribunal set aside the contested appointment because the complainant's right to a fair and open competition was violated.
injury; medical board; compensation; failure to exhaust internal remedies
The ILO requests that the complainant’s first and third complaints be joined, arguing that they are linked and overlap in substance. The complainant rejects the suggestion of joinder. As the Tribunal has already ruled on the complainant’s first complaint in Judgment 3250, [...] the ILO’s request for joinder has become moot.
ILOAT Judgment(s): 3250
Moreover, “[a]s the Tribunal has consistently held, any staff member who is eligible to occupy a post has cause of action in seeking the setting aside of the decision to give that post to another person, irrespective of his or her real chances of successful appointment to the post in question” (see Judgment 3206, under 11, and the judgments cited therein).
ILOAT Judgment(s): 3206
locus standi; cause of action
The Tribunal made a judicial determination of what the provision meant and its decision was not mere guidance. The ILO has submitted to the jurisdiction of the Tribunal as the final and judicial arbiter of employee grievances. The only reservation in the Tribunal’s Statute concerns the Tribunal’s jurisdiction which is reviewable by the International Court of Justice. This submission to jurisdiction binds the organisation, its officials and internal organs.
Judgment 2220 discusses, albeit briefly, the rule of stare decisis. It is to the effect that as a matter of judicial practice or of comity, the Tribunal will follow its own precedents and that “the latter have authority even as against persons and organisations who are not party thereto” unless it is persuaded such precedents were wrong in law or in fact or that for any other compelling reason they should not be applied. Another element of the stare decisis rule entrenched in many legal systems is that courts lower in the judicial hierarchy are obliged to follow legal principles (including the interpretation of documents) established by appellate courts higher in the judicial hierarchy. This principle does not exist to create the appearance of deference to more senior members of the judiciary. Rather it serves a much more fundamental and important purpose of creating consistency and predictability in a legal system. Even though a judge or judges lower in the judicial hierarchy may believe that a principle established or an interpretation given by judges in an appellate court higher in the judicial hierarchy is wrong or perhaps even patently wrong, they are obliged to, and do, apply the principle or interpretation. Parties should be able to make informed decisions about their legal rights and about whether they should commence or defend legal proceedings. Thus it is important for the law to be stable, predictable and certain.
It is for this reason that the Tribunal has adopted the rule of stare decisis in relation to its own decision making. Internal appeal organs and senior decision-making officials are, of course, neither courts nor judges. However, it is for the same reasons discussed above that internal organs should follow and apply principles established by the Tribunal and adopt and apply interpretations by the Tribunal of normative legal documents applicable to the staff of the organisation. That is necessary in order to create a stable, predictable and certain legal system concerning the rights and obligations of both staff and organisations. If organisations and their internal organs feel unconstrained by decisions of the Tribunal, the result is likely to be legal instability and uncertainty. Also, as a practical matter, if a different position is adopted by the organisation or its internal organs and the Tribunal reverses the decision embodying that different approach, significant costs, both financial and in resources, are likely to have been expended in defending that different approach for no apparent good purpose. Organisations and their internal organs should follow the interpretation of normative legal documents decided by the Tribunal.
ILOAT Judgment(s): 2220
The Tribunal notes that Ms N. was at the P.5 level and was transferred without competition to a P.4 position, retaining her P.5 salary and benefits. Therefore, the Tribunal considers her appointment to be an in-grade transfer, though it could appear to some to have been a demotion or downgrade. It is useful to note that, in principle, it would not appear to be in the ILO’s best interest, from a financial point of view, to fill positions of lower grades with staff members from higher grades, nor would it demonstrate a particular respect for a staff member’s dignity to assign her or him to a position at a lower grade.
The complainant raises the issue of violation of the principle of equality of treatment, arguing that she was treated differently than Ms N. following the abolition of her post. As the Tribunal finds Ms N.’s appointment to have been unlawful, there can be no violation of the principle of equality of treatment, as there cannot be equality in unlawfulness.
equal treatment; respect for dignity; transfer