Judgment No. 3903
1. The Registrar’s decision of 23 March 2016 is set aside, as is his earlier decision of 16 June 2015 with respect to the termination of the complainant’s appointment.
2. The ICC shall pay the complainant material damages in the amount of 37,000 euros.
3. The ICC shall pay the complainant moral damages in the amount of 20,000 euros.
4. The ICC shall pay the complainant costs in the amount of 4,000 euros.
5. All other claims are dismissed.
The complainant challenges the termination of his fixed-term appointment.
complaint allowed; decision quashed; fixed-term; abolition of post; termination of employment
The present complaint is one of four complaints currently before the Tribunal (the other complaints were filed by Mr B., Mr G. and Ms S.A., respectively) where there is a request for joinder of the complaints and where the complainants each challenge the ICC’s decision to terminate her or his appointment. These decisions all stem from the restructuring of the ICC’s Registry. On the basis that the material facts and the issues raised in the complaints are essentially the same, the complainant requests and the ICC agrees that the complaints should be joined. It is noted that the internal appeals (challenging the termination decisions) in these cases were considered by four differently constituted Appeals Board Panels and resulted in four final decisions. As it is preferable in the circumstances to deal with the complaints individually, the request for joinder is not granted.
Pursuant to Article VII, paragraph 1, of the Tribunal’s Statute, a complaint is not receivable unless the complainant has exhausted the internal means of redress. This means that a complaint will not be receivable if the underlying internal appeal was irreceivable (see Judgment 3758, consideration 10).
Jugement(s) TAOIT: 3758
internal appeal; internal remedies exhausted
[I]n the circumstances as the complainant understood them to be, he did not request a review of the 16 June decision to terminate his appointment within the thirty-day time limit. Although the Tribunal has consistently stressed the requirement of strict adherence to the time limits with respect to the filing of an internal appeal, there are exceptions to this requirement. In Judgment 3687, consideration 10, the Tribunal stated: “The case law also recognizes that in very limited circumstances an exception may be made to the rule of strict adherence to the relevant time limit. The circumstances identified in the case law are: ‘where the complainant has been prevented by vis major from learning of the impugned decision in good time or where the organisation, by misleading the complainant or concealing some paper from him or her so as to do him or her harm, has deprived that person of the possibility of exercising his or her right of appeal, in breach of the principle of good faith’ (see Judgment 3405, under 17; citations omitted); and ‘where some new and unforeseeable fact of decisive importance has occurred since the decision was taken, or where [the staff member concerned by that decision] is relying on facts or evidence of decisive importance of which he or she was not and could not have been aware before the decision was taken’ (see Judgment 3140, under 4; citations omitted).”
The way in which the decision to terminate the complainant’s appointment was, in the letter, merged with the decision to abolish his position, the misleading content of the letter coupled with the vague and confusing language of the notification of the termination of the appointment was a breach of the ICC’s duty to act in good faith. In these circumstances, an exception to the rule of the strict adherence to the time limit for bringing an internal appeal challenging the decision provided for in Staff Rule 111.1(b) was correctly made by the Appeals Board. It follows that the complaint is receivable before the Tribunal.
time limit; exception; good faith
It is also well settled in the case law that reasons must be given for every administrative decision affecting a staff member’s rights (see, for example, Judgments 2124, under 3, 3041, under 9, and 3617, under 5). As the underlying rationale for the requirement to give reasons is to safeguard the staff member’s rights, the obligation to give reasons is not satisfied by simply stating the statutory ground upon which the decision is taken. The reasons must give an explanation for the decision itself. A staff member needs to know the reasons for a decision so that the staff member can evaluate whether it should be challenged. As well, an internal appeal body must also know the reasons to determine whether the decision is lawful, as must the Tribunal in order to exercise its power of review (Judgment 3617, under 5).
In the present case, the failure to give reasons led to confusion and misunderstanding surrounding the nature of the decision. Further, the absence of reasons for the decision to terminate the complainant’s appointment left the complainant guessing about the reasons for the decision and impeded his ability to challenge it. Alone, this violation of the Staff Regulations and Staff Rules warrants that the impugned decision be set aside.
Jugement(s) TAOIT: 2124, 3041, 3617
duty to substantiate decision; termination of employment; judicial review
[T]here is no evidence in the record to support the assertion that a review of the requirements of newly created positions was undertaken to ascertain whether the complainant had the necessary qualifications for any of those positions. It would be expected that the complainant would have at least been informed that other options had been considered. More importantly, it is also noted that the possible options considered were limited to the newly created positions as a result of the restructuring. The duty contemplated in the case law is aimed at finding other employment within the broader organisation and is not limited to newly created positions as a result of restructuring. As stated in the case law, the failure to explore with the complainant other possible options within the Court was a breach of the ICC’s duty to treat the complainant with dignity and respect (see, for example, Judgment 2902, under 14).
Jugement(s) TAOIT: 2902
organisation's duties; respect for dignity; abolition of post; reassignment