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Judgment No. 4139

Decision

1. The decision of the Executive Director of the Global Fund of 7 January 2015, as well as the decisions of the Head of the Human Resources Department of 5 November 2013, 2 December 2013 and 28 March 2014, are set aside.
2. The Global Fund shall pay the complainant 50,000 euros in damages under all heads.
3. It shall also pay her the sum of 7,000 euros in costs.
4. All other claims are dismissed.
5. The Global Fund shall be entitled to deduct from the amount of the above awards the sum of 29,989.75 Swiss francs in order to recover the overpayment.

Summary

The complainant challenges the decision to terminate her fixed-term contract as a result of her post having been abolished.

Judgment keywords

Keywords

fixed-term; abolition of post; reorganisation; termination

Consideration 2

Extract:

The Tribunal has consistently held that a decision concerning the restructuring of an international organization’s services, including one involving the abolition of a post, lies at the discretion of the executive head of the organization and is therefore subject to only limited review. The Tribunal must verify whether this decision was taken in accordance with the rules on competence, form or procedure, whether it involves an error of fact or of law, whether it constituted misuse of authority, whether it failed to take account of material facts or whether it draws clearly incorrect conclusions from the evidence (see, for example, Judgments 1131, consideration 5, 2510, consideration 10, 2933, consideration 10, 3582, consideration 6, or 4099, consideration 3).

Reference(s)

ILOAT Judgment(s): 1131, 2510, 2933, 3582, 4099

Keywords

reorganisation; judicial review; discretion

Consideration 4

Extract:

Although neither these provisions nor the other rules governing the staff of the Global Fund clearly specify the authority competent to decide, prior to such a termination of contract, to abolish a post with the likelihood that a termination will ensue, it is clear that this authority can only be, in accordance with the case law cited above, the Executive Director himself, by virtue of the general authority conferred upon him as the executive head of the organization.

Keywords

decision-maker; executive head

Consideration 5

Extract:

Although [...] section 22 of the Handbook does envisage the possibility that the Executive Director might delegate his powers, such delegation must still have been duly established. However, it must be noted that the Global Fund has not been able to produce the delegation allegedly granted to the Head of the Human Resources Department to take decisions of this kind, whereas when a complainant seriously questions the actual delegation of powers, the defendant organization is required to establish proof of their delegation (see Judgments 1185, consideration 2, 2028, consideration 8, paragraph (3), 2558, consideration 4(a), 3071, consideration 27, and 3494, considerations 16 and 17).

Reference(s)

ILOAT Judgment(s): 1185, 2028, 2558, 3071, 3494

Keywords

delegated authority

Consideration 5

Extract:

[T]he argument that the signature of such decisions by the Head of the Human Resources Department was common practice at the Global Fund should not be accepted. It is a matter of principle that an illegal practice cannot become legally binding (see, for example, Judgments 1390, consideration 27, 2259, considerations 8 and 9, 2411, consideration 9, 2959, consideration 7, or 3544, consideration 14, and, for a case similar to the present case, [...] Judgment 3071, consideration 28).

Reference(s)

ILOAT Judgment(s): 1390, 2259, 2411, 2959, 3071, 3544

Keywords

practice; delegated authority

Consideration 6

Extract:

The Tribunal’s case law recognizes that the decision of the executive head of an organization may be communicated to the official concerned, as is common practice, by means of a letter signed by the head of human resources management (see, for example, Judgments 2836, consideration 7, 2837, consideration 4, 2871, consideration 7, 2924, consideration 5, or 3352, consideration 7). However, it must be clear from the terms of that letter, or, at least, from consideration of the documents in the file, that the decision in question was indeed taken by the executive head himself.

Reference(s)

ILOAT Judgment(s): 2836, 2837, 2871, 2924, 3352

Keywords

delegated authority

Consideration 6

Extract:

The Global Fund maintains [...] that the Chief of the Executive Director’s management team was involved in dealing with the complainant’s situation. However, this would not be enough to establish that the decision in question was taken by the Executive Director himself.

Keywords

decision-maker; delegated authority

Consideration 6

Extract:

[T]he fact, also relied on by the defendant, that the Executive Director had dismissed the complainant’s appeal against the decision of the Head of the Human Resources Department – which he could only have done by disavowing the latter and putting the organization in a delicate position – did not imply that he would necessarily have taken the same initial decision that she had.

Keywords

internal appeal; delegated authority; executive head

Consideration 9

Extract:

The complainant, who does not ask to be reinstated at the Global Fund, seeks compensation for material and moral injury resulting from the abolition of her post and the subsequent termination of her contract.

Keywords

reinstatement

Consideration 10

Extract:

[T]he Tribunal cannot accept the complainant’s argument that compensation for the injury in question should take into account a possible renewal of her contract, since such a prospect was purely hypothetical and even, in this case, highly unlikely, in view of the magnitude of the threat to her post.

Keywords

material injury

Consideration 10

Extract:

[I]t is an established principle that a staff member is required to limit, to the extent possible, the damage that may be caused to him by an administrative decision (see, for example, Judgment 3107, consideration 9).

Reference(s)

ILOAT Judgment(s): 3107

Keywords

material injury; mitigation of loss

Consideration 11

Extract:

[W]hile it is true that [...] the Global Fund made errors in its communication with the complainant concerning the abolition of her post, the Tribunal considers that the apologies offered by the organization in this regard [...].

Keywords

moral injury; apology

Consideration 14

Extract:

It is a general principal of law that any sum which has been paid in error may be recovered, provided that the request for reimbursement is made in reasonable time (see, inter alia, Judgments 1195, consideration 3, 2230, consideration 13, 2565, considerations 7(a) and 7(c), and 2899, consideration 20).
[...]
According to the Tribunal’s case law, an organization’s right to recover an overpayment must be partially – or fully – denied if the circumstances of the case show that the reimbursement sought would be unfair or inequitable for the staff member concerned (see Judgments 1111, consideration 2, 1849, considerations 16 and 18, and 2899, aforementioned, consideration 20).

Reference(s)

ILOAT Judgment(s): 1111, 1195, 1849, 2230, 2565, 2899

Keywords

recovery of overpayment



 
Last updated: 05.08.2019 ^ top