Constructive dismissal (843,-666)

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Keywords: Constructive dismissal
Total judgments found: 7

• Judgment 4665

  
  136th Session, 2023
  International Criminal Police Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant, whose post was reclassified retrospectively, claims compensation for the injury he considers he has suffered and requests that his resignation be redefined as a dismissal.

  Judgment keywords

  Keywords:

  complaint allowed; constructive dismissal; post classification; resignation;
  

  Consideration 6

  Extract:

  It follows from the foregoing that the complainant’s voluntary resignation cannot be redefined as having constituted a “constructive dismissal”, which is a concept referred to in the Tribunal’s case law to indicate that an employer has acted in a manner inconsistent with the maintenance of the employment relationship – which is not the case here – entitling the employee, if she or he elects, to treat the employer’s action as terminating the employment (see, in particular, Judgments 4383, consideration 15, and 2435, consideration 17).

  Reference(s)

  ILOAT Judgment(s): 2435, 4383
  

  Keywords:

  constructive dismissal;
  

  
  
  

• Judgment 4662

  
  136th Session, 2023
  International Criminal Police Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant contests the Secretary General’s decision to reject her application for voluntary departure and her claim for compensation for “legitimate resignation”.

  Consideration 22

  Extract:

  The complainant may well regret the fact that she was not able to participate in the Organization’s voluntary departure programme but, as Interpol’s bad faith or malice has not been proven, she was not entitled to do so. It is clear from the complainant’s application that she was keen to leave the Organization for personal and family-related reasons and therefore to terminate her appointment. Although she had taken that decision, she was not entitled to a voluntary resignation under the favourable terms of the programme. The Organization’s refusal is not sufficient to categorise her voluntary resignation as a constructive dismissal and does not allow her to refer to the provisions of the Staff Manual concerning legitimate resignation, which have in any case been repealed, when she did not rely on them at the prescribed time and on the prescribed terms.

  Keywords:

  agreed termination; constructive dismissal; resignation;
  

  
  
  

• Judgment 4490

  
  133rd Session, 2022
  European Patent Organisation
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the amount of damages awarded for the unlawful decision not to renew her fixed-term contract as a Principal Director and to reinstate her in a lower-level post instead.

  Considerations 10-12

  Extract:

  The Appeals Committee was correct in approaching the assessment of damages for the unlawful non-renewal decision as ultimately requiring an assessment of what were the prospects that the contract would, at its expiry, be renewed by lawful decision in any event and, viewed from that perspective, assessing the financial consequences to the complainant in losing the opportunity to have the contract renewed (see, for example, Judgments 2867, consideration 18, 4062, consideration 17, and 4170, consideration 15). […]
  If a decision is made not to renew a fixed-term contract but the decision was unlawful then an assessment must be made of lost future income with the organisation (adjusted and offset by any future income from other employment) which will involve an assessment of what the prospects were of the contract being renewed and its duration.
  However, the position would, at least in a case such as the present, be no different in substance if the complainant’s grievance had initially been and had remained an allegation of constructive dismissal. In a case of unlawful dismissal, if reinstatement is not ordered (in this case not sought), then the material damages are the lost future income in the position with the organisation adjusted by an assessment of whether the staff member would have remained in that position and, if not, also adjusted by future income from other employment (see Judgment 4234, consideration 10). This assessment can also be approached compendiously by assessing the value of the lost opportunity to remain in employment (see, for example, Judgment 4305, consideration 14).

  Reference(s)

  ILOAT Judgment(s): 2867, 4062, 4170, 4234, 4305
  

  Keywords:

  constructive dismissal; loss of opportunity; material injury; non-renewal of contract;
  

  
  
  

• Judgment 4383

  
  131st Session, 2021
  International Federation of Red Cross and Red Crescent Societies
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to impose on her a performance improvement plan (PIP).

  Consideration 15

  Extract:

  In Judgment 4231, under 10, citing Judgment 2745, under 13, for example, the Tribunal stated that constructive dismissal signifies that an organisation has breached the terms of a staff member’s contract in such a way as to indicate that it will no longer be bound by that contract. A staff member may treat that as constituting constructive dismissal with all the legal consequences that flow from an unlawful termination of the contract, even if she or he has resigned. In Judgment 2435, under 17, the Tribunal stated that the notion of constructive dismissal is a convenient expression to indicate that an employer has acted in a manner inconsistent with the further maintenance of the employment relationship entitling the employee, if she or he so elects, to treat the employer’s actions as terminating the employment. In the event that the employee so elects – usually by tendering her or his resignation – consequential rights and obligations are determined on the basis that it was the employer, not the employee, who terminated the employment.

  Reference(s)

  ILOAT Judgment(s): 2435, 2745, 4231
  

  Keywords:

  constructive dismissal;
  

  
  
  

• Judgment 4231

  
  129th Session, 2020
  Food and Agriculture Organization of the United Nations
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision not to extend his fixed-term appointment and to place him on special leave with pay until his contract expired.

  Consideration 10

  Extract:

  The complainant’s plea that the non-extension of his appointment was a disguised disciplinary measure amounting to constructive dismissal is unfounded. In the first place, the notion of constructive dismissal is inapplicable in the present case. The FAO opted not to extend his contract on its expiry. Constructive dismissal, on the other hand, signifies that an organisation has breached the terms of a staff member’s contract in such a way as to indicate that it will no longer be bound by that contract. A staff member may treat that as constituting constructive dismissal with all the legal consequences that flow from an unlawful termination of the contract, even if she or he has resigned (see Judgments 2745, consideration 13, and 2967, consideration 9). Moreover, in the Tribunal’s view, the circumstances which culminated in the non-extension may lead to conjecture (but are not proof) that the decision may have been a hidden sanction. This is given the contents of the exchanges in his progress report of 8 June 2013 to the Deputy Director-General for Operations, his letter of 5 May 2014 to the Director-General; the latter’s reply of 9 June 2014 and the complainant’s response of 17 June 2014 culminating in the letter of 4 July 2014, which contains the contested decision. However, as the Tribunal has consistently stated, in Judgment 2907, consideration 23, for example, “the existence of a hidden disciplinary measure cannot be inferred from mere conjecture and could not be accepted unless it were proven”.

  Reference(s)

  ILOAT Judgment(s): 2745, 2907, 2967
  

  Keywords:

  constructive dismissal; disguised disciplinary measure;
  

  
  
  

• Judgment 4086

  
  127th Session, 2019
  World Intellectual Property Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to maintain her contested job description.

  Consideration 13

  Extract:

  [T]he alleged failure to provide the subject job description [did not] amount to constructive dismissal, as WIPO did not thereby breach the complainant’s contract in such a way as to indicate that it would no longer have been bound by it (see, for example, Judgment 2745, under 13).

  Reference(s)

  ILOAT Judgment(s): 2745
  

  Keywords:

  constructive dismissal; contract; post description;
  

  
  
  

• Judgment 2967

  
  110th Session, 2011
  International Telecommunication Union
  Extracts: EN, FR
  Full Judgment Text: EN, FR

  Considerations 9-10

  Extract:

  [T]he complaint is directed to “the constructive abolition” of the complainant’s post, although reference is also made in the pleadings to its abolition, as such. The expression “constructive abolition” is, presumably, used by analogy with “constructive dismissal”, which ordinarily denotes a situation in which an organisation engages in conduct such as to indicate that it no longer considers itself bound by the fundamental terms of the employment contract with the consequence that, if the employee then terminates the contract, he or she is entitled to relief on the basis that the organisation wrongfully terminated the contract. Presumably, the term “constructive abolition” is used to suggest that the complainant has the same rights and entitlements as if her post had actually been abolished. However, the analogy with constructive dismissal is not complete, there being nothing to equate with conduct indicating a failure to be bound by the employment contract. That being so, it is necessary that the present matter be analysed in terms of the transfer of functions associated with a post, and not in terms of the abolition of a post. That is not to say that some considerations relevant to the abolition of a post are not also relevant to the transfer of functions.
  It is well settled that “an international organisation necessarily has power to restructure some or all of its departments or units, including by the abolition of posts, the creation of new posts and the redeployment of staff” (see Judgments 2510, under 10, and 2856, under 9). The complainant contends that the decision to abolish the functions associated with her post and to assign them to a new post was not justified on objective grounds and was based on malice, prejudice, bias and ill will. Although the complainant contends otherwise, the reorganisation, so far as it concerned the functions previously performed by her and by Mr C., had a sound basis in terms of management and efficiency. There is no basis for implying any improper purpose by reason only of that reorganisation. And that is so even if, as the complainant contends, the reorganisation did not result in a reduction of staff in the department in which she worked prior to the reorganisation, or a decrease in its budget. Although these circumstances will ordinarily give rise to a presumption that there has been only a redistribution of functions and not a real abolition of posts, they cannot give rise to a presumption of improper purpose where, as here, the reorganisation was effected throughout the General Secretariat, and not merely in the department in which the complainant worked.

  Reference(s)

  ILOAT Judgment(s): 2510, 2856
  

  Keywords:

  constructive dismissal;