Judgment No. 4001
1. The impugned decision dated 25 August 2015 and the Director General’s prior decision to appoint Ms S. to the contested post are set aside.
2. The case is remitted to WIPO for the Director General to obtain a new recommendation from the Appointment Board on the applications originally submitted for the post of Head of the Caribbean Section and take a new decision.
3. WIPO shall ensure that the selected candidate is shielded from any injury that may flow from the setting aside of the impugned decision and the resultant quashing of an appointment which she had accepted in good faith.
4. WIPO shall pay the complainant 20,000 Swiss francs in moral damages.
5. WIPO shall pay the complainant costs in the amount of 8,000 Swiss francs.
6. All other claims are dismissed.
The complainant challenges the decision to confirm the appointment of Ms S. to the post of Head of the Caribbean Section.
complaint allowed; decision quashed; case sent back to organisation; appointment; selection procedure
The complainant has requested that this complaint be joined with his first complaint, which is the subject of a judgment also delivered in public this day. However, it is appropriate to deal with them separately because they raise different legal issues which warrant different consideration. No order joining the two complaints will therefore be made.
The complainant also applies for an oral hearing. He names a former Deputy Director General as the person whom he wishes to be called as his witness. The Tribunal notes that that person has already provided the complainant with a witness statement [...]. Moreover, the complainant provides no reasons why an oral hearing should be held nor any indication that the witness would provide evidence which is relevant to the issues in this complaint. In any event, in view of the abundant and sufficiently clear evidence produced by the parties, the Tribunal considers that it is fully informed about the case and does not therefore deem it necessary to hold an oral hearing. The application will therefore be dismissed.
The following basic principles as stated, for example, in Judgment 3652, consideration 7, guide the Tribunal where a decision such as this is challenged:
“The Tribunal’s case law has it that a staff appointment by an international organisation is a decision that lies within the discretion of its executive head. Such a decision is subject to only limited review and may be set aside only if it was taken without authority or in breach of a rule of form or of procedure, or if it was based on a mistake of fact or of law, or if some material fact was overlooked, or if there was abuse of authority, or if a clearly wrong conclusion was drawn from the evidence (see Judgment 3537, under 10). Nevertheless, anyone who applies for a post to be filled by some process of selection is entitled to have her or his application considered in good faith and in keeping with the basic rules of fair and open competition. That is a right which every applicant must enjoy, whatever her or his hope of success may be (see, inter alia, Judgment 2163, under 1, and the case law cited therein, and Judgment 3209, under 11). It was also stated that an organisation must abide by the rules on selection and, when the process proves to be flawed, the Tribunal can quash any resulting appointment, albeit on the understanding that the organisation must ensure that the successful candidate is shielded from any injury which may result from the cancellation of her or his appointment, which she or he accepted in good faith (see, for example, Judgment 3130, under 10 and 11).”
A complainant is required to demonstrate that there was a serious defect in the selection process. The following was accordingly relevantly stated in Judgment 1827, consideration 6:
“The selection of candidates for promotion is necessarily based on merit and requires a high degree of judgment on the part of those involved in the selection process. Those who would have the Tribunal interfere must demonstrate a serious defect in it; it is not enough simply to assert that one is better qualified than the selected candidate.”
However, when an organization conducts a competition to fill a post the process must comply with the relevant rules and the case law. The following was accordingly relevantly stated in Judgment 1549, considerations 11 and 13:
“When an organisation wants to fill a post by competition it must comply with the material rules and the general precepts of the case law. [...] The purpose of competition is to let everyone who wants a post compete for it equally. So precedent demands scrupulous compliance with the rules announced beforehand: patere legem quam ipse fecisti. See Judgments 107[...], 729 [...], 1071 [...], 1077 [...], 1158 [...], 1223 [...] and 1359 [...].”
Jugement(s) TAOIT: 1549, 1827, 3652
burden of proof; bias; selection procedure; personal prejudice
These circumstances are not the same as those in Judgment 3184, for example, in which the Tribunal stated, in consideration 15, that if a member of an internal appeal board had already expressed a concluded view on the merits of an appeal and was later appointed to a new internal appeal board to express an opinion on the same merits in a later appeal, their impartiality and objectivity could be questioned.
Jugement(s) TAOIT: 3184
internal appeals body; conflict of interest; composition of the internal appeals body
Given the findings that the complaint is well founded on the two pleas on the conclusions [...], the impugned decision [...], as well as the Director General’s prior decision to appoint Ms S. to the contested post, will be set aside. [...] The case will be remitted to WIPO for the Director General to obtain a new recommendation from the Appointment Board on the applications originally submitted and to take a new decision.
case sent back to organisation
The Tribunal cannot grant the complainant reclassification at the P-4 level or appoint him to the contested post, as he has requested. The applicable provisions, Staff Regulations 4.8 and 4.9, confer no right upon any person to be directly appointed to a post with retroactive effect without going through the selection process which the Staff Regulations and Rules require. Neither is it within the purview of the Tribunal to reclassify the complainant’s post, as he has requested. There is no legal basis upon which the Tribunal may grant the complainant an award of material damages. However, although the complainant’s submissions do not establish material injury, the unlawfulness of the contested decisions did cause him moral injury, for which he will be awarded compensation in the amount of 20,000 Swiss francs.
According to the Tribunal’s case law, an international organisation must observe the essential rule in every selection procedure, which is that the person appointed must possess the minimum qualifications specified in the vacancy notice (see Judgment 3372, under 19). The case law further states that an international organisation which decides to hold a competition in order to fill a post cannot select a candidate who does not satisfy one of the required qualifications specified in the vacancy notice. Such conduct, which is tantamount to modifying the criteria for appointment to the post during the selection process, incurs the Tribunal’s censure on two counts. Firstly, it violates the principle which forbids the Administration to ignore the rules it has itself defined (tu patere legem quam ipse fecisti). In this respect, a modification of the applicable criteria during the selection procedure more generally undermines the requirements of mutual trust and fairness which international organisations have a duty to observe in their relations with their staff. Secondly, the appointment body’s alteration, after the procedure has begun, of the qualifications which were initially required in order to obtain the post, introduces a serious flaw into the selection process with respect to the principle of equal opportunity among candidates. Irrespective of the reasons for such action, it inevitably erodes the safeguards of objectivity and transparency which must be provided in order to comply with this essential principle, a breach of which vitiates any appointment based on a competition (see Judgment 3641, under 4(a)).
Jugement(s) TAOIT: 3372, 3641
patere legem; selection procedure
[T]he complainant challenged [the] decision in this complaint on a number of grounds. Some of those grounds are beyond the scope of the present complaint, which is solely concerned with the decision not to select the complainant to fill the contested post. The complainant challenges, for example, the reclassification of his post in the reorganized Caribbean Unit/Section. However, that is the central challenge in his first complaint and is beyond the scope of the present complaint. It will therefore not be considered in this judgment.
The complainant also challenges the reorganization of the Caribbean Unit/Section and the creation of the new post of Head of the Caribbean Section; the definition of his role in the newly created Section and what he describes as the effective abolition of his post as a result of the creation of the post of Head of the Caribbean Section which he alleges has identical functions to those which he carried out as Head of the Caribbean Unit. The Tribunal observes that the complainant did not challenge these decisions internally within the required time. He therefore did not exhaust his internal remedies in relation to these matters, as Article VII, paragraph 1, of the Statute of the Tribunal requires. These grounds are irreceivable.
receivability of the complaint; internal remedies not exhausted