Judgment No. 3884
1. The Director-Generalís decision of 30 June 2014, to the extent that it confirmed the implicit decision to deny the complainantís request for an extension of her appointment beyond the mandatory retirement age, as well as the decision denying her request, are set aside.
2. The ILO shall pay the complainant financial compensation for the material injury resulting from the refusal to extend her appointment as indicated under 22.
3. The ILO shall pay the complainant moral damages in the amount of 20,000 Swiss francs.
4. It shall also pay her 7,000 Swiss francs in costs.
5. All other claims, to the extent that they have not become moot, are dismissed.
The complainant impugns the decision not to extend her appointment beyond the mandatory retirement age.
The Tribunal has consistently held that a decision to retain an official beyond the normal retirement age is an exceptional measure over which the executive head of an organisation exercises wide discretion. Such a decision is therefore subject to only limited review by the Tribunal, which will interfere only if the decision was taken without authority, if a rule of form or procedure was breached, if it was based on a mistake of fact or of law, if an essential fact was overlooked, if a clearly mistaken conclusion was drawn from the facts, or if there was abuse of authority (see, for example, Judgments 1143, under 3, 2845, under 5, 3285, under 10, or 3765, under 2).
ILOAT Judgment(s): 1143, 2845, 3285, 3765
The principle of non-retroactivity, which is one of the general principles of international civil service law, forbids an organisation from applying to staff retroactively a rule which is unfavourable to them (see, for example, Judgments 963, under 5, 1979, under 5(h), or 2439, under 12).
Such unlawful retroactive effect occurs inter alia when a new rule that has not yet entered into force (see, for example, Judgments 1012, under 7, or 1641, under 8) or a new administrative practice that has not been clearly announced in advance (see, in particular, Judgments 767, under 9, 792, under 8, 1053, under 7, and 1610, under 21) is applied to an official in a manner which goes against her or his interests.
ILOAT Judgment(s): 767, 792, 963, 1012, 1053, 1610, 1641, 1979, 2439
Where a provision confers a broad discretion on the executive head of an organisation, [...] it is perfectly proper for the executive head to decide to establish a rule circumscribing the exercise of her or his own discretionary authority. Indeed, such a measure can only be welcomed since, in principle, it seeks to eradicate the risk of arbitrary decision-making inherent in such authority, and the Tribunalís case law recognises it as completely lawful (see, specifically with reference to an organisationís policy concerning the retention of staff beyond retirement age, Judgments 2125, under 6, and 2513, under 2 and 8).
ILOAT Judgment(s): 2125, 2513
[E]ven supposing that the minute [...] could be regarded as not actually constituting a legal rule, the change in practice that it entailed in respect of the consideration of requests for extensions of appointments could not, in any event, be implemented before it had been clearly announced to the officials concerned.
publicity of a rule
Although the complainantís request for an extension of her appointment was rejected [...] on a ground tainted with an error of law, it cannot be assumed, in view of the Director-Generalís broad discretion [...], that the request would have been granted had it been lawfully examined. Nevertheless, the complainant was indisputably deprived of a valuable opportunity to have her appointment extended, the loss of which warrants compensation.
material injury; loss of opportunity
The unlawfulness of the impugned decision has, in itself, caused the complainant moral injury, for which compensation must also be paid.
The fact that the decision was purely implicit meant, by definition, that it was not accompanied by a statement of reasons.
implied decision; motivation
[S]ince there is no reason to reinstate the complainant in her post, [...] her challenge to her successorís appointment, which would obviously make sense only if her reinstatement were possible, has become irrelevant.