Judgment No. 4004
1. The Registrar’s decision, contained in his letter of 12 February 2016, is set aside, as is his decision of 22 June 2015.
2. The ICC shall pay the complainant 180,000 euros in material damages, deducting therefrom the 139,113.62 euros which have already been paid to him.
3. The ICC shall pay interest on the resulting balance at the rate of 5 per cent per annum from 9 September 2015 until the date of payment.
4. The ICC shall pay the complainant moral damages in the amount of 3,000 euros.
5. The ICC shall pay the complainant costs in the amount of 1,000 euros.
6. All other claims are dismissed.
The complainant challenges the rejection of his appeal against the abolition of his post and the termination of his fixed-term appointment, which was filed after he had accepted a mutually agreed separation.
decision quashed; fixed-term; abolition of post; reorganisation; termination of employment
Firm precedent has it that decisions concerning restructuring within an international organization, including the abolition of posts, may be taken at the discretion of the executive head of the organization and are consequently subject to only limited review. Accordingly, the Tribunal will ascertain whether such decisions are taken in accordance with the relevant rules on competence, form or procedure, whether they rest upon a mistake of fact or law, or whether they constituted abuse of authority. The Tribunal will not rule on the appropriateness of the restructuring, as it will not substitute the organization’s view with its own (see, for example, Judgments 2742, under 34, and 2933, under 10).
Jugement(s) TAOIT: 2742, 2933
abolition of post; discretion; limits
Among other issues which he raises, the complainant challenges the legal validity of the Information Circulars, and, by extension, the Principles and Procedures contained therein, under which his post was abolished and he separated from the ICC. He argues that by publishing the Principles and Procedures in the Information Circulars, the Registrar breached the method stipulated for their promulgation as provided in the Presidential Directive ICC/PRESD/G/2003/001 (the Presidential Directive). The Tribunal considered this very question in a detailed analysis in Judgment 3907 and concluded as follows in consideration 26:
“In conclusion, pursuant to the Presidential Directive, the Principles and Procedures should have been promulgated by an Administrative Instruction or, arguably, by a Presidential Directive. As the promulgation of the Principles and Procedures by Information Circular was in violation of the Presidential Directive, they were without legal foundation and are, therefore, unlawful as are the decisions taken pursuant to the Principles and Procedures. It follows that the decisions to abolish the complainant’s position and to terminate the complainant’s appointment were also unlawful and will be set aside.”
This finding also holds for the present complaint, with the result that the decisions to abolish the complainant’s post and to terminate his appointment were unlawful since the Principles and Procedures upon which they were made were promulgated in breach of the process stipulated in the Presidential Directive. The Separation Agreement arose from the implementation of the unlawful Principles and Procedures. The Separation Agreement is therefore unenforceable. In the circumstances, the ICC’s contention that the complaint is irreceivable is unsustainable and is rejected. Accordingly, the decisions to abolish the complainant’s position and to terminate his appointment will be set aside.
Jugement(s) TAOIT: 3907
patere legem; abolition of post; agreed termination; publication
The complainant seeks reinstatement, compensation for material and moral injury, and legal costs. The Tribunal is satisfied that reinstatement would raise practical difficulties because of the reorganization of the Registry and the time that has elapsed since the termination of his appointment. Therefore, the Tribunal finds it appropriate not to order reinstatement but it will award the complainant material damages in the amount of 180,000 euros, however deducting therefrom the 139,113.62 euros already paid to him. The Tribunal has taken into account all of the circumstances of the case in determining this amount, including the duration of the complainant’s contract, the income he would have earned at the ICC, but has also taken into account the income he could have earned in other employment and the possibility that in due course his employment could have been terminated lawfully. The ICC shall also pay the complainant moral damages which, in the particular circumstances of this case, including the fact that the complainant resiled from the Separation Agreement he had voluntarily entered, will be set at 3,000 euros.
reinstatement; moral damages; material damages