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Judgment No. 447

Decision

1. The complainant is entitled to be given preference over other equally well-qualified applicants if she seeks a position comparable to post 0157.
2. The Organization shall pay the complainant compensation amounting to $8,000.
3. The complainant is entitled to $2,000 in costs.
4. The other claims for relief are dismissed.

Consideration 6

Extract:

there was no violation of the statutory provisions if they prescribe no date by which a post description must be communicated, if the official was apprised of her duties before taking them up and if it was possible for her to obtain the said description.

Keywords

organisation's duties; duty to inform; post description

Consideration 7

Extract:

there had been tension between the director and the staff association. the complainant, a member of the association, was transferred against her wishes. she insists that she was the victim of a disguised disciplinary sanction: she was transferred hastily and over her objections. but the transfer was part of a general plan which had been drawn up much earlier. there is nothing to suggest that its intention was to mask a sanction. the complainant was not especially active in the staff association. there being uncertainty about the real grounds for the impugned decision, the tribunal will not regard as proved her allegation of a breach of the right of association.

Keywords

evidence; lack of evidence; transfer; hidden disciplinary measure; staff union; freedom of association; staff union activity; staff representative

Consideration 4

Extract:

under the staff rules the director, in making a transfer decision, should take account of an official's own interests, provided they are not at variance with the organization's wider interests. before transferring the complainant against her wishes, the director ought to have made sure that there was no other staff member fit and willing to take up the material post; he should if necessary have held a competition. in view of her age, seniority and outstanding work record, the complainant was entitled to better treatment.

Keywords

organisation's duties; staff member's interest; transfer; organisation's interest

Consideration 11

Extract:

The impugned decision did not take account of the complainant's particular interests and was tainted with bias. The impugned decision is unlawful and the complainant is therefore entitled to compensation for moral prejudice provided that there was serious injury to her feelings. She was certainly affected by the suddenness of the decision, which she regarded as unfair punishment. moreover, her reputation very probably did suffer. Accordingly, the compensation for moral prejudice is determined ex aequo et bono.

Keywords

complaint allowed; moral injury; professional injury; equity; staff member's interest; transfer; bias; moral damages

Consideration 11

Extract:

"Where the impugned decision is not unlawful such compensation is due only in exceptional circumstances, viz. where the wrong is especially grave. On the other hand, where the decision is unlawful, the wrong need not be especially grave for an award of compensation for moral prejudice: it is enough for the Tribunal to find a serious wrong."

Keywords

decision; moral injury; flaw; condition; moral damages

Consideration 8

Extract:

under the material provision, an official may appeal against any measure or decision tainted with personal prejudice against him; it is sufficient that he has suffered treatment which is not warranted on any objective grounds. "that is so in the present instance. despite her age and work record the complainant was suddenly transferred to a post which did not suit her and no thought was ever given to finding a solution which would more closely match her legitimate interests. only prejudice can account for such a lack of consideration".

Keywords

grounds; evidence; staff member's interest; transfer; bias

Consideration 3

Extract:

if a decision is based on provisions which grant the director wide discretionary authority, it can be set aside by the tribunal only if it was taken without authority, or violated a rule of form or procedure, or was based on an error of fact or or law, or if essential facts were overlooked, or if there was misuse of authority, or if mistaken conclusions were drawn from the facts.

Keywords

transfer; judicial review; discretion

Consideration 2

Extract:

"under the general rules on the burden of proof, it is for the author to establish the date on which a communication was received. [...] for want of evidence as to the actual day of receipt, the tribunal will accept what is said by the addressee."

Keywords

decision; date of notification; burden of proof; lack of evidence



 
Last updated: 03.04.2017 ^ top