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Judgment No. 3688

Decision

1. The impugned decision is set aside.
2. WHO shall pay the complainant material damages in the amount of 90,000 euros.
3. WHO shall also pay the complainant moral damages in the amount of 70,000 euros.
4. WHO shall pay interest on the sums referred to in points 2 and 3 at the rate of 5 per cent per annum from the date of public delivery of this judgment until the date of payment, unless these sums are paid within 30 days of the date of public delivery of this judgment.
5. WHO shall also pay the complainant costs in the amount of 7,000 euros.
6. All other claims are dismissed.

Summary

The complainant challenges the decision to abolish her post and to separate her from service.

Judgment keywords

Keywords

abolition of post

Consideration 1

Extract:

WHO contends that [the complainant's] allegations of prejudice and bias, retaliation and malice in the present complaint are irreceivable. However, the Tribunal holds that those allegations are not claims, but pleas to support her argument that these were some of the factors which influenced the abolition of her post and separation (see, for example, Judgments 2837, consideration 3, and 3617, consideration 2).

Reference(s)

Jugement(s) TAOIT: 2837, 3617

Keywords

new claim; new plea

Consideration 2

Extract:

The complainant requests an oral hearing under Article 12, paragraph 1, of the Tribunal’s Rules. This Article provides that a party that so applies shall identify any witness whom that party wants the Tribunal to hear and the issues that the witness is to address. The complainant states that she herself wishes to be heard in relation to all issues raised in the complaint, and any other witnesses identified after reviewing WHO’s reply and surrejoinder. She has provided two witness statements as Annexes to her rejoinder, which cannot assist with resolving any of the issues raised in the present complaint. The complainant had initially requested a hearing before the HBA, but subsequently decided to forego it and requested that her internal appeal be examined in camera based on the written pleadings and documents. The Tribunal determines that it is unnecessary to have an oral hearing in the terms of the complainant’s request given the detailed nature of the evidence, including documents, which she has provided. Accordingly, an oral hearing will not be ordered.

Reference(s)

ILOAT reference: Article 12, paragraph 1, of the Rules

Keywords

oral proceedings

Consideration 3

Extract:

The evidence which the complainant presents, particularly relating to the strained relationships in the Unit, may raise speculation as to whether the reorganization was merely a device to be rid of the complainant. However, there is not sufficient or sufficiently cogent evidence, as against speculation or surmise, to link the abolition of the complainant’s post and her separation from office to the alleged acts of prejudice and bias, retaliation, malice or bad faith perpetrated against her.

Keywords

evidence

Consideration 6

Extract:

The Tribunal has consistently stated that fairness to an appellant requires that the internal appeal process must be efficient [as] stated in Judgment 2904, consideration 15 [...].

Reference(s)

Jugement(s) TAOIT: 2904

Keywords

delay; internal procedure

Consideration 11

Extract:

The delays in the HBA proceedings were unreasonable and were not caused by wrongful procedural conduct on the part of the complainant and there is no indication that the HBA’s workload justified it. The delay before the HBA was mainly caused by the necessity to request information and documents from WHO, which should have been provided early in the process.
The delay entitles the complainant to an award of moral damages for the defendant’s breach of its duties of due diligence and care (see Judgments 2522, under 7, 3160, under 16, and 3188, under 25).

Reference(s)

Jugement(s) TAOIT: 2522, 3160, 3188

Keywords

moral injury; delay; internal procedure; moral damages

Consideration 12

Extract:

It was stated in Judgment 3582, consideration 4, for example, that the amount of damages awarded for the injury caused by an unreasonable delay in processing an internal appeal depends on the length of the delay and its consequences. The consequences vary depending on the subject matter of the dispute so that a delay in resolving a matter of limited seriousness in its impact on the appellant will ordinarily be less injurious than a delay in resolving a matter which has a severe impact.

Reference(s)

Jugement(s) TAOIT: 3582

Keywords

moral injury; delay; damages

Consideration 18

Extract:

Whether the post was abolished for financial reasons is a question of fact. Those facts were within the knowledge of WHO and it must show that when it advanced financial reasons as a ground for the abolition of the complainant’s post this was genuine. It has not done so. In the absence of that evidence, it is determined that the complainant’s post was unlawfully abolished and the claim on this ground is well founded.

Keywords

evidence; burden of proof; abolition of post

Consideration 22

Extract:

There is no reason why the complainant was informed [...], in the presence of others, that her post was to be abolished while she was at a meeting with the Ombudsman to explore her secondment to another department. That action was insensitive and inappropriate. This failure entitles the complainant to an award of moral damages.

Keywords

moral injury; moral damages

Consideration 23

Extract:

WHO breached its duty of care to the complainant by abolishing her post while at the same time recruiting someone to fill the P-4 position the duties of which the complainant was qualified to undertake.

Keywords

abolition of post; duty of care

Consideration 27

Extract:

WHO appreciated the long established principle that an international organization owes a duty of care to an employee whose post is abolished to consider that person for other posts for which that person is qualified.

Keywords

abolition of post; duty of care

Consideration 31

Extract:

WHO’s failure to disclose the relevant documents to the complainant in the internal appeal proceedings breached the adversarial principle or the principle of equality of arms, which constitutes a breach of due process entitling the complainant to moral damages.

Keywords

moral injury; damages; disclosure of evidence; due process

Consideration 32

Extract:

These sums should be paid to [the complainant] within 30 days of the date of delivery of this judgment, failing which they shall bear interest at the rate of 5 per cent per annum from that date until the date of payment.

Keywords

penalty for delay

Consideration 32

Extract:

The complainant seeks an order that WHO should reinstate her to her post which was unlawfully abolished. It was however stated, in Judgment 3353, consideration 35, for example, that the reinstatement of a person on a fixed-term contract can be ordered in only exceptional cases. The circumstances in the present case are not of an exceptional character, but the complainant will be awarded 90,000 euros in material damages for the loss of a valuable opportunity to have her contract renewed, the loss of career opportunity as a result of the unlawful abolition of her post, and for WHO’s failure to make reasonable efforts to reassign her under Staff Rule 1050.2.

Reference(s)

Organization rules reference: Staff Rule 1050.2
Jugement(s) TAOIT: 3353

Keywords

reinstatement; abolition of post; loss of opportunity; material damages



 
Dernière mise à jour: 05.04.2017 ^ haut