Judgment No. 4149
1. WHO shall pay the complainant 60,000 Swiss francs as material damages.
2. WHO shall pay the complainant 8,000 Swiss francs in costs.
3. All other claims are dismissed.
The complainant contests the decision to abolish his post and to place him on special leave with pay until the expiry of his fixed-term appointment.
complaint allowed in part; abolition of post; reassignment
WHO raises a threshold issue about the receivability of the complaint insofar as it might be thought to contain allegations of harassment, malice, prejudice and retaliation being pursued independently of the challenge to the impugned decision to abolish the complainant’s post. However, it is relatively clear that the allegations of harassment and related matters are intended to establish an aspect of the unlawfulness of the decision to abolish the post and the complainant’s claims are cast no wider. It is open to the complainant to follow this course (see, for example, Judgment 3688, consideration 1).
Jugement(s) TAOIT: 3688
receivability of the complaint; abolition of post; harassment
If a member of staff is, under the Staff Regulations and Staff Rules, entitled to be considered for reassignment, a bare contractual provision which limits, qualifies or removes that right has no legal effect. The Tribunal has recently said in Judgment 4018, consideration 7, that “a clause [of a contract of employment] which, as is the case here, contravenes the staff rules and regulations is unlawful and therefore cannot apply, even if the contracting parties clearly intended it to do so”.
Jugement(s) TAOIT: 4018
As a result of this flaw in the reassignment process, the complainant lost the opportunity of appointment to another position within WHO with the prospect that he could secure ongoing employment, even after his then existing contract expired. This amounts to a loss of a valuable opportunity. Quantification of the value is difficult and necessarily imprecise. The Tribunal is, nevertheless, satisfied that the complainant’s loss entitles him to material damages assessed in the sum of 60,000 Swiss francs.
material injury; loss of opportunity