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Judgment No. 154

Decision

1. THE COMPLAINT CONCERNING THE TRANSFER OF THE COMPLAINANT IS DISMISSED AS WITHOUT FOUNDATION.
2. THE COMPLAINT CONCERNING THE DISCHARGE OF THE COMPLAINANT IS DISMISSED AS IRRECEIVABLE.

Consideration 2

Extract:

Decisions to transfer an official lie within the discretion of the authority making them and are subject to review by the Tribunal only within certain limits; "in so far as the Tribunal judges itself competent to hear the complaints filed by the complainant against the decision to transfer him, they do not justify the quashing of the decision or the award of damages."

Keywords

transfer; judicial review; discretion

Consideration 1

Extract:

"The two complaints relate in part to the same facts and impugn decisions one of which is consequential to the other. In these circumstances the Tribunal must order the joining of the two complaints as proposed by the complainant."

Keywords

complaint; joinder; identical facts

Consideration 2(B)

Extract:

It is stated in their contracts that officials are initially appointed to a given post, subject to possible transfer subsequently. "The wording [initially, subsequently] of this provision does not mean that in every case an official must perform the duties of the original post for a certain period of time before being required to accept re-assignment. If the first assignment appears straight away to be unsuitable, there is nothing to prevent his immediate re-assignment. Any other solution might be as damaging to the official as to the organisation."

Keywords

time limit; interpretation; assignment; transfer; appointment; organisation's interest

Consideration 2

Extract:

"Whether based on the Staff Regulations or on the terms of appointment, decisions to transfer an official lie within the discretion of the authority making them, and are therefore subject to review by the Tribunal only within certain limits."

Keywords

transfer; judicial review; discretion

Consideration 2(C)

Extract:

The Director-General was not obliged to postpone the complainant's re-assignment because of alleged ill health. The disorders cited did not afford sufficient proof that he was unable to comply with the transfer order. The medical certificate bears a date later than the date of the complainant's scheduled departure. "In any event, it was not incumbent on the organisation to carry out automatically any inquiry into the complainant's state of health."

Keywords

time limit; organisation's duties; transfer; health reasons; medical examination

Consideration 3(B)

Extract:

"[T]he sanction of discharge cannot be regarded as being out of proportion to the complainant's dereliction of duty. As the complainant had clearly shown that he did not intend to comply with the instructions concerning his transfer which it was his duty to obey, the organisation was not obliged to make use of his services [in the country in question], where his presence might be prejudicial to the organisation's work, nor in any other place since he refused to move from [the country]."

Keywords

transfer; contract; fixed-term; termination of employment; refusal

Consideration 2(D)

Extract:

The demonstrations to which the complainant's arrival had given rise led the organisation to order the complainant's transfer. It is regrettable that before assigning the complainant to his post the organisation should not have satisfied itself that his assignment would raise no difficulties. "However, the complainant could not fail to be aware of the difficulties to which his assignment [...] might give rise, and he cannot therefore properly complain that the organisation lacked information which according to the normal standards of good faith he himself should have supplied."

Keywords

grounds; good faith; organisation's duties; duty to inform; transfer; conduct; organisation's interest

Consideration 2(D)

Extract:

The complainant's transfer was motivated by the fact that his political views, as interpreted by the national authorities, could have compromised the success of his mission. "The organisation has rightly adopted a consistent policy whereby it avoids keeping on any staff member in any area where he has become a controversial figure, whatever the merits of the controversy may be, since the activities of international organisations can be effective only if their officials are above all suspicion."

Keywords

grounds; transfer; political activity; persona non grata; organisation's interest



 
Last updated: 28.08.2020 ^ top