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Judgment No. 4240

Decision

1. The impugned decision of 4 August 2017 is set aside.
2. WHO shall pay the complainant 10,000 Swiss francs in moral damages.
3. WHO shall also pay the complainant 8,000 Swiss francs in costs.
4. All other claims are dismissed.

Summary

The complainant challenges the decision to reassign her to the post of Senior Advisor on Innovative Strategic Information, Strategic Information and Evaluation Department.

Judgment keywords

Keywords

decision quashed; reassignment

Consideration 2

Extract:

The complainant applies for an oral hearing pursuant to Article 12, paragraph 1, of the Tribunal’s Rules. She states in her brief that “[c]onsidering that the facts of the case are in dispute and that [she] was not able to adduce all the relevant evidence in writing, she requests that an oral hearing be conducted and the issues submitted herein be investigated”. She reserved her right to call witnesses after receiving WHO’s reply and surrejoinder. In its reply, WHO submits that such a hearing is unnecessary noting, among other things, that the brief states no grounds for the application. The Tribunal notes that the complainant named no witnesses and did not refer to an oral hearing in her rejoinder. Moreover, the issues raised in the proceedings before the Tribunal can be resolved having regard to the detailed pleas and the documentary evidence which the parties have provided. The application for an oral hearing is therefore rejected.

Keywords

oral proceedings

Consideration 3

Extract:

The request, which the complainant made in her rejoinder, for WHO to produce documents relating to her first-level supervisor’s vetting process leading to the latter’s promotion to another post before the end of the investigation of the harassment allegations, will also be rejected. That matter is irrelevant to the complainant’s reassignment.

Keywords

disclosure of evidence

Consideration 5

Extract:

Regarding the applicable principles, the Tribunal has recognized the wide discretion of an executive head of an international organization, in the interest of the organization, to reassign staff members. The Tribunal has therefore stated that it may interfere with a decision to reassign a staff member only on the limited grounds that the decision was taken ultra vires or shows a formal or procedural flaw or mistake of fact or law, if some material fact was overlooked, if there was misuse of authority or an obviously wrong inference was drawn from the evidence. The Tribunal will therefore be circumspect in reviewing a reassignment or transfer. The Tribunal has recognized that reassignment may be influenced by the need to eliminate tensions that compromise the functioning of a unit. It has however reiterated that the organization must show due regard, in both form and substance, for the dignity of the official concerned, particularly by providing her or him with work of the same level of responsibilities as she or he performed in the previous post and matching her or his qualifications. The Tribunal has further stated that the responsibilities that attach to posts are comparable where on an objective basis the level of the duties to be performed is similar, and that the exercise to reclassify a post or to redefine the duties attaching thereto falls within the discretion of the executive head of the organization, on the recommendation of the relevant manager, and it is equally within the power of the management to determine the qualifications required for a particular post. However, every employee has the right to a proper administrative position, which means that she or he should both hold a post and perform the duties pertaining thereto and should be given real work (see, for example, Judgments 4086, considerations 10 and 11, and 3488, consideration 3).

Reference(s)

ILOAT Judgment(s): 3488, 4086

Keywords

reassignment; discretion

Consideration 6

Extract:

The complainant makes it clear that she is not relying upon statements concerning harassment to assert that the decision to reassign her “was driven by the claimed harassment of [the DXD/MER] but rather that it occurred as a result of [the DXD/MER’s] malice, ill-will and prejudice against [her]” and that any statements brought into the present proceedings touching allegations of harassment are merely to support her plea that her reassignment was occasioned by these alleged improper motives on the part of the DXD/MER. She is not precluded from relying on statements touching on the alleged harassment to support her plea in these proceedings that she was reassigned as a result of the alleged improper motives (see, for example, Judgment 4149, consideration 7).

Reference(s)

ILOAT Judgment(s): 4149

Keywords

new claim; new plea

Consideration 8

Extract:

The complainant provides no proof that the decision was based on malice, ill-will, bias, discrimination or prejudice towards her or that the decision was taken in retaliation against her, as she alleges (see, for example, Judgment 3753, consideration 13). There is therefore no basis for the award of the exemplary damages which the complainant claims.

Reference(s)

ILOAT Judgment(s): 3753

Keywords

exemplary damages

Consideration 10

Extract:

The Tribunal’s case law states that it is a general rule of law that an official who is called upon to take a decision affecting the rights or duties of other persons subject to her or his jurisdiction must withdraw in cases in which her or his impartiality may be open to question on reasonable grounds. It further states that it is immaterial that, subjectively, the official may consider herself or himself able to take an unprejudiced decision; nor is it enough for the persons affected by the decision to suspect its author of prejudice (see, for example, Judgment 3958, consideration 11). The Tribunal finds that the evidence which the complainant provides to support the allegation of conflict of interest may raise a suspicion. However, it does not provide reasonable grounds on which to hold that the Executive Director’s impartiality may have been open to question.

Reference(s)

ILOAT Judgment(s): 3958

Keywords

impartiality; conflict of interest

Consideration 11

Extract:

[T]he complainant was reassigned because of what the Administration reasonably saw as the managerial necessity to eliminate tensions between the complainant and the DXD/MER (see Judgment 2635, consideration 7) and in the interest of the complainant’s health.

Reference(s)

ILOAT Judgment(s): 2635

Keywords

reassignment

Consideration 13

Extract:

The complainant submits that her reassignment to the post of Senior Advisor violated WHO’s post classification standards. She presents arguments and a narrative that are highly technical to support this assertion and essentially invites the Tribunal to undertake a technical assessment of that evidence. The Tribunal has consistently stated that such an exercise falls within the purview of persons whose expertise by training and experience fits them to undertake it (see, for example, Judgments 4024, consideration 3, and 4083, consideration 8). It is however within the Tribunal’s purview to determine, as stated in Judgment 3488, consideration 3, whether in keeping with its duty of care to the complainant, in reassigning her WHO/UNAIDS showed due regard, in both form and substance, for her dignity, particularly by providing her with work of the same level as that which she performed in her previous post and matching her qualifications. That is, whether WHO/UNAIDS ensured that the responsibilities that attached to her new post were comparable, on an objective basis, to the level of the functions that she performed in her previous post (see, for example, Judgment 1343, consideration 9).

Reference(s)

ILOAT Judgment(s): 1343, 3488, 4024, 4083

Keywords

respect for dignity; post classification; reassignment; duty of care

Consideration 16

Extract:

The GBA [Global Board of Appeal] [...] erred when it did not further consider whether, on the basis of the significantly different responsibilities, WHO/UNAIDS had breached its duty of care towards the complainant. The Tribunal has stated in Judgment 2191, consideration 3, that organizations must carefully take into account the interests and dignity of staff members when effecting a transfer to which the staff member concerned is opposed. It should have been obvious to the GBA from its own analysis that the complainant’s responsibilities had been reduced materially because of the absence of supervisory or managerial functions from the Senior Advisor post so that that post was not objectively comparable with her previous Director, TIN, post (see, for example, Judgment 4086, consideration 14). There is no evidence in the file to show that the complainant’s legitimate objections to the proposed reassignment, particularly concerning her level of responsibility, were properly addressed by the Administration before that decision was imposed on her on 28 January 2016. The complainant’s allegation that in reassigning her the Organization breached its duty of care towards her is therefore well founded.

Reference(s)

ILOAT Judgment(s): 2191, 4086

Keywords

respect for dignity; transfer; reassignment; duty of care

Consideration 17

Extract:

The complainant seeks moral damages for the improper reassignment on the ground, which the Tribunal accepts, that it caused her stress, distress, physical exhaustion, humiliation and adversely affected her career.

Keywords

moral damages

Consideration 17

Extract:

[The complainant's] request for an order to reinstate her to her previous post [...] will be rejected as it has been overtaken by subsequent events.

Keywords

reinstatement



 
Last updated: 25.02.2020 ^ top