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Judgment No. 4097

Decision

1. WHO shall pay the complainant 20,000 United States dollars as material damages.
2. WHO shall pay the complainant 1,000 United States dollars in costs.
3. All other claims are dismissed.

Summary

The complainant contests the decisions to end her participation in the reassignment process and to terminate her fixed-term appointment further to the abolition of her post.

Judgment keywords

Keywords

abolition of post; reassignment; termination

Consideration 2

Extract:

[T]he Tribunal will only have regard to the pleas contained in the complainant’s brief and rejoinder to the Tribunal and will disregard any pleas incorporated by reference to documents created for the purposes of internal review and appeal (see, for example, Judgment 3951, consideration 6).

Reference(s)

ILOAT Judgment(s): 3951

Keywords

complaint; legal brief

Consideration 4

Extract:

One of the orders made by the Tribunal was that “[a]ll other claims are dismissed”. This order reflected a final determination by the Tribunal, in WHO’s favour, of the complainant’s challenge to the abolition of her post. The complainant is bound by that final determination and cannot challenge it in subsequent proceedings (see, for example, Judgment 3248, consideration 3).

Reference(s)

ILOAT Judgment(s): 3248

Keywords

res judicata

Consideration 6

Extract:

Ordinarily, when a post is lawfully abolished and reasonable and appropriate steps are undertaken, albeit without success, to reassign the official who held the post to another position within the organization, then the ensuing termination of employment can be taken to have been lawful.

Keywords

abolition of post; reassignment; termination

Consideration 9

Extract:

The Tribunal recently addressed the question of what were an organization’s obligations in relation to reassignment in Judgment 4036, considerations 7 and 8, citing Judgment 3908. Several propositions emerge from Judgment 4036 which are consistent with earlier case law. The first is that normative legal documents promulgated within an organization cannot alone circumscribe the obligation of the organization to explore other employment options within the organization for staff whose positions have been abolished. The second is that an organization has a duty to apply processes biased in favour of the staff member whose position has been abolished and which are likely to promote appointment to another position. The third and related proposition is that an organization has an obligation to deal fairly with staff who occupy an abolished position which ordinarily extends to finding, if they exist, other positions within the organization for which those staff have the experience and qualifications. This last proposition is qualified by matters referred to in consideration 16 of Judgment 3908. The fourth proposition is that it is not the Tribunal’s role to actually assess whether a staff member whose position has been abolished was suitable for another position to which they might have been reassigned. Rather, it is to ascertain whether any or adequate consideration was given to the fact that the complainant was then a member of staff whose post had been abolished and was facing the termination of her or his employment.

Keywords

organisation's duties; abolition of post; reassignment

Consideration 10

Extract:

The complainant refers in her pleas to the Tribunal’s judgments which emphasise the need for an organization to apply rules concerning the abolition of posts and the reassignment of staff with considerable generosity towards the affected staff members (see, for example, Judgments 133 and 388). While these and many other judgments of the Tribunal concerned permanent staff, they were judgments given at a time when the preponderance of staff in international organizations were permanent staff. There is, presently, a greater mix of staff of differing status in international organizations. However, simply because some staff are not permanent, it does not follow that those other classes of staff of differing status should be afforded no protection by principles developed by the Tribunal in circumstances where their post is abolished and attempts are being made to reassign them.

Reference(s)

ILOAT Judgment(s): 133, 388

Keywords

status of complainant; organisation's duties; analogy; abolition of post; reassignment

Consideration 13

Extract:

The Tribunal is satisfied that the decision not to extend the complainant’s reassignment period was flawed. It is not a question of whether it was likely or not that the complainant would be placed in a position emerging from the reorganization. The power to extend a reassignment period is a discretionary power but it is not unfettered. It must be exercised having regard to the principles developed by the Tribunal. An organization that is endeavouring to reassign a staff member whose position has been abolished is obliged to do all that it can to find another position. It has been stated in one judgment of the Tribunal that the organization must do “its utmost” to find another position (see Judgment 3754, consideration 16, citing Judgment 2830, consideration 9). Indeed, the Tribunal has said that it is incumbent on the organization to prove that the affected staff member was not able to remain in the organization’s service (see Judgment 2830, consideration 9). These concepts are comprehended by the expression “reasonable efforts” in Staff Rule 1050.2. Even if it was only remotely possible, in the circumstances of a case such as the present when the reorganization was incomplete, that the reorganization might create a position to which the complainant could have been appointed, the complainant was entitled to the benefit of an extension of the reassignment period, as proposed by the RRC or for an even longer period.

Keywords

organisation's duties; abolition of post; reassignment; discretion

Consideration 14

Extract:

The complainant bears the burden of proof in establishing bias or personal prejudice (see, for example, Judgment 3753, consideration 13).

Reference(s)

ILOAT Judgment(s): 3753

Keywords

burden of proof; bias; personal prejudice

Consideration 17

Extract:

The complainant seeks reinstatement. Having regard to the fact that the complainant’s position was lawfully abolished, the effluxion of time and the absence of the complainant pointing to a position that, demonstrably, she could occupy, reinstatement is inappropriate.

Keywords

reinstatement

Consideration 17

Extract:

[T]he complainant bears the evidentiary burden of establishing material damage (see, for example, Judgment 3778, consideration 4)[.]

Reference(s)

ILOAT Judgment(s): 3778

Keywords

burden of proof; material damages

Consideration 17

Extract:

[T]he complainant did lose a valuable opportunity to secure and remain in employment in WHO because of the too narrowly focused reassignment process. While the value of that loss is difficult to quantify, it is nonetheless of value. [...]

Keywords

loss of opportunity; material damages



 
Last updated: 10.04.2019 ^ top