Judgment No. 4156
Decision
1. The WIPO Director General’s decision of 9 January 2015 is set aside to the extent that it limited the amount of compensation awarded to the complainant to 1,000 Swiss francs.
2. The Organization shall pay the complainant moral damages as set out in consideration 6 of the judgment.
3. It shall also pay her 5,000 euros in costs.
4. All other claims are dismissed.
Summary
The complainant challenges the amount of compensation awarded for the moral injury she suffered because her evaluation for 2012 was irregular.
Judgment keywords
Keywords
complaint allowed; moral injury; decision quashed; performance evaluation
Consideration 5
Extract:
With regard to damages, the complainant bears the burden of proof and she or he must provide evidence of the injury suffered, of the alleged unlawful act, and of the causal link between the unlawful act and the injury (see Judgments 3778, consideration 4, 2471, consideration 5, and 1942, consideration 6).
The mere fact that a decision was initially flawed does not suffice to warrant awarding damages for moral injury. In this case, the flaw was corrected on the recommendation of the Appeal Board. To be entitled to moral damages, an official must have suffered more severe injury than that which an improper decision ordinarily causes (see Judgment 1380, consideration 11).
Reference(s)
ILOAT Judgment(s): 1380, 1942, 2471, 3778
Keywords
moral injury; burden of proof
Consideration 6
Extract:
The amount of compensation must be the subject of a specific examination, which takes into account all relevant factors, such as the seriousness, nature and duration of the damage suffered and also whether or not the organization withdrew the irregular decision and rectified the irregularity. In this case, the evaluation – which, incidentally, was belated – contained unjustified and inappropriately worded criticisms. The complainant states that her dignity was hurt by the irregularities committed and that she was shocked at the aggressive and hostile behaviour of the reviewing officer, who expressed her views using excessive language. She emphasizes that, even though the disputed evaluation was withdrawn, this was only done after more than 16 months, during which time she suffered “severe stress and anxiety”.
Keywords
moral injury; burden of proof; compensation
Consideration 8
Extract:
Reference must be made to the Tribunal’s consistent precedent that “the principle of equal treatment requires, on the one hand, that officials in identical or similar situations be subject to the same rules and, on the other, that officials in dissimilar situations be governed by different rules defined so as to take account of this dissimilarity (see, for example Judgments 1990, under 7, 2194, under 6(a), 2313, under 5, or 3029, under 14)” (see Judgments 3787, under 3, and 3902, under 5).
Reference(s)
ILOAT Judgment(s): 1990, 2194, 2313, 3029, 3787, 3902
Keywords
unequal treatment
Consideration 8
Extract:
As regards costs relating to the internal appeal, [...] the Tribunal notes that there is no rule which obliges the Organization to defray legal costs incurred in the context of internal appeal proceedings. In these circumstances, it was open to the Director General to refuse to reimburse them (see Judgments 2996, consideration 23, and 221, consideration 7).
Reference(s)
ILOAT Judgment(s): 221, 2996
Keywords
internal appeal; costs
Consideration 9
Extract:
[T]he Tribunal considers that there are no grounds for awarding costs in respect of the internal appeal proceedings, since such costs may only be awarded under exceptional circumstances, which do not exist in the present case.
Keywords
internal appeal; costs
Consideration 3
Extract:
The complainant’s requests concerning the reviewing officer’s irregular evaluation have therefore become moot. Consequently, it is not necessary to rule on this point (see, for example, Judgments 2784, consideration 7, and 3179, consideration 3).
Reference(s)
ILOAT Judgment(s): 2784, 3179
Keywords
claim moot
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