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Judgment No. 809

Decision

1. The impugned decisions are declared unlawful insofar as they put the complainant on an unclassified post and on compulsory special leave.
2. The Organization shall pay him 50,000 French francs in moral damages.
3. It shall pay him 100,000 French francs in costs.
4. His other claims are dismissed.

Consideration 14

Extract:

"The organization submits that it followed a practice introduced by the master standard for job classification which the International Civil Service Commission has approved and which applies throughout the United Nations system. But the master standard does not apply directly to the staff of the international organisations: it consists of mere guidelines which the organisations are free to introduce into their own regulations."

Keywords

complaint allowed; complaint allowed in part; general decision; icsc decision; practice; administrative instruction; rule of another organisation; staff regulations and rules; enforcement; post classification; binding character

Considerations 17 and 20

Extract:

The complainant "was made to take special leave at full pay. The material provision is [Unesco Staff] Rule 105.2(b): 'in exceptional circumstances staff members may be required to take special leave with pay, this measure being without prejudice to the rights of the staff member'. [...] The organization is not saying that no suitable post was vacant at the time the impugned decision was taken [...] nor does it maintain that it made the efforts it could have made to find a solution. All it does say is that the complainant never applied at the time for a single post. [...] On the broader issue, if the organization's intent was that the decision should be some sort of disciplinary sanction, then it would have perverted Rule 105.2(b)".

Reference(s)

Organization rules reference: UNESCO STAFF RULE 105.2(B)

Keywords

complaint allowed; complaint allowed in part; exception; decision quashed; organisation's duties; staff regulations and rules; assignment; special leave; staff member's duties; disciplinary measure; hidden disciplinary measure

Consideration 20

Extract:

"The Director-General's authority is not absolute and quite plainly he failed in this case to pay due regard to the complainant's qualifications and experience in picking P.5 posts."

Keywords

complaint allowed; complaint allowed in part; assignment; grade; professional experience; qualifications; degree; discretion; executive head; limits; disregard of essential fact

Order

Extract:

"The President may direct proceedings and even if not expressly so empowered may order suspension. Since a complainant may withdraw a complaint he may also apply for suspension. Such application will succeed unless the advantage to the complainant of suspending the proceedings is outweighed by the advantage to the defendant of pursuing them."

Keywords

procedure before the tribunal; competence; withdrawal of suit; president of tribunal; order; order of suspension; staff member's interest; no provision; organisation's interest; request by a party; implied powers

Order

Extract:

"Continuation of the suspension might [...] needlessly hold up the proceedings and cause detriment to the defendant without serving the interests of the complainant. The application accordingly fails".

Keywords

president of tribunal; order; order of suspension; extension; refusal; request by a party

Consideration 20

Extract:

"[The] posts and the grade they carried were such that the decision was tantamount to a sanction. An organisation is bound to show due regard to the dignity and good name of its staff".

Keywords

complaint allowed; complaint allowed in part; moral injury; professional injury; organisation's duties; respect for dignity; assignment; transfer; grade; downgrading; post; hidden disciplinary measure

Consideration 17

Extract:

"Unless leave is granted at his own wish or he is on sick leave - which is just an incident of employment - a paid staff member is entitled to be given work to do that matches his grade."

Keywords

complaint allowed; complaint allowed in part; exception; refusal to assign work; assignment; grade; salary; leave; annual leave; sick leave; right

Consideration 16

Extract:

"The Director-General omitted to consult the Executive Board of Unesco before taking his decision, though Article 54 of the Board's Rules of procedure reads: 'The Director-General shall consult the members of the Executive Board with regard to the appointment or renewal of a contract of officials at D.1 and above whose posts come under the regular budget of the organization.'" The decision to appoint the complainant to an unclassified post is therefore tainted with a fatal flaw.

Reference(s)

Organization rules reference: ARTICLE 54 OF THE RULES OF PROCEDURE OF THE EXECUTIVE BOARD OF UNESCO

Keywords

complaint allowed; complaint allowed in part; organisation's duties; written rule; breach; assignment; professional category; appointment; extension; consultation; executive head; executive body; flaw

Consideration 19

Extract:

In order to justify the imposition of special leave, it "must be shown [...] that use was not made of the special leave for any purpose extraneous to the Organization's interests and that the arrangement was a reasonable though not necessarily the only reasonable way out of the dilemma."

Keywords

complaint allowed; complaint allowed in part; organisation's duties; special leave; organisation's interest; condition; purpose



 
Last updated: 25.03.2020 ^ top