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Judgment No. 3871

Decision

1. The decision of the Director-General of WHO of 24 December 2014 is set aside, except insofar as it awards the complainant costs and compensation for the injury suffered on account of the undue length of the internal appeal proceedings.
2. The complainant shall, as far as possible, be reinstated in WHO as from 8 March 2010, with all the legal consequences that this entails.
3. If WHO deems reinstatement to be impossible, it shall pay the complainant material damages, plus interest, calculated as indicated in consideration 17.
4. To the extent that it concerns the written reprimand received by the complainant on 25 September 2008, the case is remitted to WHO as indicated in consideration 10.
5. WHO shall, in any case, pay the complainant moral damages in the amount of 15,000 euros.
6. All other claims are dismissed.

Summary

The complainant challenges WHOís refusal to reinstate him after the decision to dismiss him was set aside.

Judgment keywords

Keywords

reinstatement

Consideration 3

Extract:

As the Tribunal has consistently held, an international organization may not terminate the appointment of a staff member whose post has been abolished, at least if she or he holds an appointment of indeterminate duration, without first taking suitable steps to find her or him alternative employment (see, for example, Judgments 269, under 2, 1745, under 7, or 2207, under 9). When it has to abolish a post held by a staff member who holds a contract for an indefinite period of time, it must do all that it can to reassign that person as a matter of priority to another post matching her or his abilities and grade. 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, or 2830, under 9).
The above-cited case law relating to the abolition of a post held by staff member holding a contract for an indefinite period also applies when examining the possibilities for reinstating an official with a continuous appointment who has been unlawfully dismissed on disciplinary grounds.
In the instant case, the Director-General therefore had a duty, in principle, to restore the status quo ante after having decided to set aside the decision to dismiss the complainant. Thus, regardless of the fact that the complainantís previous post had been abolished, the Director-General was not free to choose between reinstatement and compensation.

Reference(s)

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

Keywords

reinstatement; abolition of post

Consideration 4

Extract:

[T]he time which has elapsed since dismissal does not, in principle, exempt an employer from taking steps to reinstate an official whose contract was ended unlawfully. Were that not the case, the employer could avoid having to reinstate the official following the setting aside of her or his dismissal simply by delaying the internal appeal proceedings initiated to challenge the dismissal.

Keywords

delay; reinstatement

Consideration 4

Extract:

WHO submits that the complainantís reinstatement was not appropriate because it had lost trust in his ability to perform his duties satisfactorily. This submission will not, however, be accepted, as the complainantís dismissal was based not on professional shortcomings but on disciplinary grounds.

Keywords

reinstatement

Consideration 6

Extract:

The case law related to [Article VII, paragraph 1, of the Statute of the Tribunal] requires that any person who claims to have exhausted internal means of redress must prove that she or he has exactly followed the procedure laid down in the staff regulations and in particular that she or he has observed the time limits set by the procedure (see, for example, Judgment 1469, under 16).

Reference(s)

ILOAT reference: Article VII, paragraph 1, of the Statute
ILOAT Judgment(s): 1469

Keywords

internal remedies exhausted

Consideration 9

Extract:

According to the Tribunalís case law, it is incumbent upon the sender of a document to prove, in the event of any dispute in this regard, that it was actually received by its addressee (see, for example, Judgment 2074, under 6).

Reference(s)

ILOAT Judgment(s): 2074

Keywords

notification

Consideration 12

Extract:

The Tribunalís case law has established that the question as to whether harassment has occurred must be determined in the light of a thorough examination of all the objective circumstances surrounding the events complained of. An allegation of harassment must be borne out by specific acts, the burden of proof being on the person who pleads it, but there is no need to prove that the accused person acted with intent (see Judgment 3233, under 6, and the case law cited therein).

Reference(s)

ILOAT Judgment(s): 3233

Keywords

harassment

Consideration 15

Extract:

Having regard in particular to the nature and duration of the appointment which the complainant formerly held, the Tribunal will order WHO to reinstate him, as far as possible, as from 8 March 2010, the date on which his dismissal took effect, with all the legal consequences that this entails.
If, however, WHO considers, in view of its staff complement and the availability of budgetary funds, that reinstatement is impossible, it will have to pay the complainant damages for the material injury caused by his unlawful removal from his post.

Keywords

reinstatement; material damages

Consideration 18

Extract:

Consistent precedent has it that the rule laid down in Article VII, paragraph 1, of the Statute of the Tribunal that internal means of redress must first be exhausted does not apply to a claim for compensation for moral injury, which constitutes a claim for consequential relief which the Tribunal has the power to grant in all circumstances (see Judgment 2609, under 10, or Judgment 3080, under 25).

Reference(s)

ILOAT reference: Article VII, paragraph 1, of the Statute
ILOAT Judgment(s): 2609, 3080

Keywords

internal remedies exhausted; moral damages



 
Last updated: 11.07.2017 ^ top