Judgment No. 2457
1. The impugned decision is set aside.
2. The case is referred back to the Organisation to take action as described under 7.
3. The Organisation shall pay the complainant 5,000 euros in moral damages and 2,000 euros in costs.
4. The complaint is otherwise dismissed.
"The Organisation contends that the claims for damages are irreceivable because they were put forward in this specific manner for the first time in the complaint. However, it appears from the submissions that the request concerning damages had in fact been made in the course of the internal appeal procedure, albeit only orally and in general terms. [...] The Tribunal therefore considers that, in accordance with the case law (see in particular Judgment 2360), the claims for damages are receivable."
ILOAT Judgment(s): 2360
procedure before the tribunal; complaint; claim; new claim; complaint allowed; complaint allowed in part; moral injury; receivability of the complaint; formal requirements; internal appeal; internal remedies exhausted; evidence; appraisal of evidence; case law; breach; request by a party; material damages
The complainant argues that the competition procedure was flawed owing to the fact that one of the members of the Selection Board was not present at the pre-selection meeting. The Organisation does not deny this fact but considers that this procedural flaw could not invalidate the pre-selection since the Selection Board, which decided unanimously, would not have reached a different conclusion even if all Board members had been present.
Basing itself on the applicable rules the Tribunal considers that "the absence of one member of the Board did constitute a flaw, despite the fact that the Board's opinion was unanimous. Since the flawed composition of the Selection Board could not be corrected through subsequent consultation of the absent member, the competition procedure, which is tainted with a formal flaw, must be set aside where the complainant is concerned [...]. The complainant must therefore be restored to the position in which he was prior to the [pre-selection] meeting [...], and his application must be reviewed in accordance with the applicable rules."
procedure before the tribunal; claim; complaint allowed; complaint allowed in part; decision; identical claims; complainant; decision quashed; written rule; enforcement; provision; competition; candidate; selection board; consultation; flaw; formal flaw; procedural flaw; compensation; consequence; difference; composition of the internal appeals body