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Judgment No. 3071

Decision

1. The second, third and fourth complaints are dismissed.
2. The Director-General's decision of 3 July 2009 is set aside.
3. The ILO shall pay the complainant the full salary, allowances and other benefits, including pension and health insurance contributions, that she would have received if her contract had been extended from 1 January to 31 December 2008. The complainant must give credit for amounts actually earned by her in that period. The ILO shall pay interest on the resulting balance at the rate of 5 per cent per annum from 1 November 2008 until the date of payment.
4. The ILO shall also pay the complainant the amount of 50,000 Swiss francs by way of moral damages.
5. It shall pay her costs in the sum of 8,000 francs.
6. All other claims are dismissed.

Consideration 12

Extract:

"When a provision [...] provides for the different treatment of different classes of persons, the question whether the provision is discriminatory depends on two issues. The first is whether the specified differences in respect of which different treatment is allowed are differences that justify different treatment; if so, the second issue is whether the different treatment is appropriate and adapted to those differences (see Judgment 2915, under 7)."

Reference(s)

ILOAT Judgment(s): 2915

Keywords

equal treatment; definition; difference

Consideration 28

Extract:

"A practice that is inconsistent with staff regulations cannot obtain legal force (see Judgment 1390, under 27)."

Reference(s)

ILOAT Judgment(s): 1390

Keywords

practice; staff regulations and rules; effect

Consideration 36

Extract:

"It is well established that an international organisation has a duty to its staff members to investigate claims of harassment. That duty extends to both the staff member alleging harassment and the person against whom a complaint is made (see Judgment 2642, under 8). [...] Further, the duty is a duty to investigate claims of harassment "promptly and thoroughly" (see Judgment 2642, under 8)."

Reference(s)

ILOAT Judgment(s): 2642

Keywords

claim; inquiry; organisation's duties; harassment; investigation

Consideration 39

Extract:

"Contemporaneous notes [...] always have evidentiary value, the more so if they are not controverted by other evidence. [E]-mail communications which are evidence of their contents and [...] assume particular evidentiary weight if their contents are not challenged."

Keywords

evidence; admissibility of evidence

Consideration 48

Extract:

"An international organisation has a responsibility to treat its officials with dignity. If criticism is warranted [...] that should be done either by means of the performance appraisal reports or in a manner that ensures respect for the staff member's dignity."

Keywords

organisation's duties; respect for dignity; performance report; duty of care

Judgment keywords

Keywords

complaint allowed; decision quashed; non-renewal of contract; harassment; complaint dismissed

Consideration 49

Extract:

The complainant also contends that she was treated in an offensive and humiliating manner by reason of the failure of the Director of ILO/AIDS to respond to a number of her e-mails, or to respond in sufficient time so as to enable action to be taken. In this regard, she refers to the failure to respond in time to requests for the other members of her team to participate in meetings. She also refers to the failure to respond to her e-mails requesting a decision on certain publications. The defendant answers these allegations on the basis of the Director’s busy schedule and refers to the Tribunal’s statement in Judgment 2745, under 19, that “conduct that […] [is] the result of […] mere inefficiency [does] not constitute harassment”. However, this conduct has to be assessed in the overall context of the treatment afforded to the complainant, and when so assessed it is more probable than not that the failure to respond to the complainant’s e-mails was the result of the Director’s disdain for her work and that of the RPAU.

Reference(s)

ILOAT Judgment(s): 2745

Keywords

harassment; humiliation

Consideration 53

Extract:

It should be noted that the complainant also sought an order relating to the appointment of the person appointed as Senior Legal Officer in ILO/AIDS and orders for investigation of possible reprisals, as well as potential violations of the principle of independence of the international civil service and of the Standards of Conduct for the International Civil Service. The Tribunal has no power to make such orders and the complainant’s claims in relation to these matters must be dismissed.

Keywords

injunction

Consideration 27

Extract:

It is not in doubt that the Director-General may delegate his authority to other officials. However, and as pointed out in Judgment 2028, under 8(3), “when a complainant calls for proof that power has in fact been delegated to a specific person, it is a matter for the Organisation to produce such proof” (see also Judgment 2558, under 4(a)).

Reference(s)

ILOAT Judgment(s): 2028, 2558

Keywords

delegated authority

Consideration 52

Extract:

[T]he Director-General’s decision of 3 July 2009 must be set aside, both with respect to the decision of 30 November 2007 and the complainant’s claim of harassment. In view of the restructuring of ILO/AIDS this is not an appropriate case in which to order reinstatement. However, the complainant is entitled to notional reinstatement for a period of 12 months from 1 January 2008 with the consequence that the ILO should pay her the salary, allowances and other benefits, including pension and health insurance contributions, that she would have received if her contract had been extended to 31 December 2008. The complainant must give credit for the amounts actually earned by her during the period from 1 January to 31 December 2008. As the complainant was in fact employed until the end of October 2008, the Tribunal will award interest on the resulting balance at the rate of 5 per cent per annum from 1 November 2008 until the date of payment.

Keywords

reinstatement



 
Last updated: 14.10.2021 ^ top