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Judgment No. 3755

Decision

1. WHO shall pay the complainant 80,000 Swiss francs in compensation for material injury.
2. It shall pay the complainant 15,000 Swiss francs in compensation for moral injury.
3. It shall also pay the complainant costs in the amount of 8,000 Swiss francs.
4. All other claims are dismissed.

Summary

The complainant challenges the decision to terminate his continuing appointment owing to the abolition of his position.

Judgment keywords

Keywords

complaint allowed; abolition of post

Consideration 1

Extract:

In his rejoinder the complainant disputes the receivability of the Organization’s reply on the grounds that it mentions neither the name nor the function of “any representative of the defendant organisation”. This criticism is irrelevant. Although it is true that neither the reply nor the surrejoinder provides any indication of the identity or function of its author, WHO has explained that its submissions came from the Legal Counsel ad interim. This satisfies the requirements of Article 5, paragraph 3, of the Tribunal’s Rules.

Reference(s)

ILOAT reference: Article 5, paragraph 3, of the Rules

Keywords

reply

Consideration 3

Extract:

An organisation is entitled to proceed on the basis that a decision which is not challenged within the prescribed time limits is fully and legally effective when the applicable time limit for challenging that decision before the competent internal appeal bodies has passed (see Judgments 2933, under 8, and 3439, under 4).

Reference(s)

ILOAT Judgment(s): 2933, 3439

Keywords

late appeal

Consideration 6

Extract:

While it is true that international organisations have the right to restructure their operations, abolish posts if necessary and consequently terminate the appointment of their staff members who are affected by the planned restructuring (see Judgment 1854, under 10), they cannot simply terminate their appointment – at least not if they hold an appointment of indeterminate duration – without first taking suitable steps to find them alternative employment (see, for example, Judgments 269, under 2, 1745, under 7, 2207, under 9, and 3238, under 10).
When an organisation has to abolish a position occupied by a staff member holding a continuous appointment, it therefore has a duty to do all that it can to reassign that person, as a matter of priority, to another post matching his or her abilities and grade. The staff member in question may therefore claim to be appointed to any vacant post which she or he is capable of filling in a competent manner, regardless of the qualifications of the other candidates (see Judgment 133). If the attempt to find such a post proves fruitless, it is up to the organisation, if the staff member concerned agrees, to try to place her or him in duties at a lower grade and to widen its search accordingly (see Judgments 1782, under 11, and 2830, under 9).

Reference(s)

ILOAT Judgment(s): 133, 269, 1745, 1782, 1854, 2207, 2830, 3238

Keywords

abolition of post; reorganisation; duty of care

Consideration 9

Extract:

It is to no avail that the defendant organisation refers to consideration 23 of [...] Judgment 2933, in which the Tribunal held that a reassignment committee is under no obligation to inform staff members participating in a reassignment process of every step taken to reassign them. Such discretion is fully justified when exhaustive information about the steps taken with a view to reassignment might arouse false hopes in the job seeker. In this case, however, the conduct denounced is plainly incompatible with the administrative bodies’ duty to explore all existing reassignment options with the person in question (see Judgments 2902, under 14, and 3439, under 9).

Reference(s)

ILOAT Judgment(s): 2902, 2933, 3439

Keywords

duty to inform; reassignment

Consideration 10

Extract:

The Tribunal has repeatedly held that a staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) a decision affecting a personal interest worthy of protection. Under normal circumstances, such evidence cannot be withheld on grounds of confidentiality unless there is some special case in which a higher interest stands in the way of the disclosure of certain documents. But such disclosure may not be refused merely in order to strengthen the position of the Administration or one of its officers (see Judgment 3688, under 29, and the case law cited therein).
The Tribunal has also found that the report of the body responsible for conducting a reassignment process […] is analogous not to the records of confidential discussions, but to the final report of a selection committee which may be disclosed to the staff member concerned, if necessary with redactions to ensure the confidentiality of third parties (see Judgment 3290, under 24).

Reference(s)

ILOAT Judgment(s): 3290, 3688

Keywords

evidence; confidential evidence; disclosure of evidence; adversarial proceedings; right to be heard

Consideration 10

Extract:

The resultant flaw in the internal appeal procedure [non-disclosure of evidence] was not remedied in any way by the fact that the Organization produced the report in question with its reply before the Tribunal.

Keywords

evidence; disclosure of evidence; reply

Consideration 15

Extract:

The Tribunal considers that the Organization did not process the internal appeal with the requisite promptness and diligence. According to well-established case law, “[s]ince compliance with internal appeal procedures is a condition precedent to access to the Tribunal, an organisation has a positive obligation to see to it that such procedures move forward with reasonable speed” (see Judgments 2197, under 33, and 2841, under 9). A period of approximately two years is plainly unreasonable in light of all the circumstances of the case.

Reference(s)

ILOAT Judgment(s): 2197, 2841

Keywords

moral injury; delay in internal procedure

Consideration 18

Extract:

[T]he complainant was not invited to play an active part in the various stages of the reassignment process, it cannot be denied that he had no opportunity to engage meaningfully in his reassignment, as he could have done if he had been informed in a timely manner of the vacant posts which might have matched his profile and qualifications and if he had been given a chance to show that he was suited to the duties related to these posts.

Keywords

duty to inform

Consideration 19

Extract:

[B]efore terminating [the complainant's] appointment, WHO should have ascertained whether he was prepared to accept a post at a grade lower than that of the position which he had held previously (see Judgment 1782, under 11). It was not up to the complainant to prove that he was able to remain in the Organization’s service in some capacity; it was up to the Organization to prove the contrary (see Judgment 2830, under 9, in fine).

Reference(s)

ILOAT Judgment(s): 1782, 2830

Keywords

burden of proof; termination of employment; duty of care

Consideration 20

Extract:

[T]he impugned decision has caused the complainant not only [...] moral injury […] but also material injury due to the loss of opportunity resulting from the shortcomings in the efforts to reassign him.

Keywords

material damages



 
Last updated: 02.09.2020 ^ top