Judgment No. 4029
1. The Director-General’s 20 November 2015 decision and the Human Resources Department’s 5 February 2013 decision are set aside.
2. WHO shall pay the complainant material damages as provided in consideration 21 of the judgment.
3. WHO shall pay the complainant costs in the amount of 1,000 Swiss francs.
4. All other claims are dismissed.
The complainant challenges the decision not to grant him the two-step within-grade increase which, he argues, WHO ought to have granted him at the time of his appointment under a fixed-term contract.
complaint allowed; decision quashed; step
It is well settled in the case law “that a practice cannot become legally binding if it contravenes a written rule that is already in force” (Judgment 3601, under 10). In Judgment 2959, under 7, the Tribunal explained that “a practice which is in violation of a rule cannot have the effect of modifying the rule itself”. In this case, WHO initiated a practice for the benefit of long-term short-term staff members to address the concern that these staff members were not given any within-grade increases. The benefit provided in the application of that practice went beyond and was in addition to the provisions in Staff Rule 320.1. The practice did not modify Staff Rule 320.1 or affect the rights of other WHO staff members. Accordingly, the Tribunal concludes that the practice was legally binding.
Jugement(s) TAOIT: 2959, 3601
[T]he principle of equality requires that persons in the same position in fact and in law must be treated equally. The failure to grant the complainant the two-step within-grade increase that at the material time was given to other long-term short-term staff members, who were in the same position as the complainant, constitutes unequal treatment and entitles the complainant to an award of material damages.
The complainant’s request for an order requiring WHO to provide him with a Certificate of Service is beyond the Tribunal’s competence. However, it is noted that WHO has agreed to provide the complainant with a Certificate of Service upon request.
competence of tribunal; order; certificate of service