Judgment No. 3438
The complaint is dismissed.
The Tribunal found that the complainant's request for reintegration was moot and that her other claims were devoid of merit.
internal appeal; unpaid leave; complaint dismissed
"The complainant submits that she was deprived of an effective internal appeal. In her opinion, the membership of the Appeal Board and the manner in which it functions made it impossible for that body to provide a thorough statement of the reasons for its opinion, or to arrive at them independently.[...] This plea, which the Tribunal finds to be intemperate and improper, is therefore devoid of merit."
internal appeals body
"As the Tribunal has already had occasion to find, while [Staff Rule 11.1.1] makes no provision for a second exchange of written submissions, it does not rule out this possibility, and it does not therefore preclude the submission of a rejoinder by the person concerned in accordance with the requirements of the adversarial principle (see Judgment 3223, under 6)."
ILOAT Judgment(s): 3223
"[T]he complainant [...] commented so extensively on the Secretary-Generalís objections that most of her submissions to the Tribunal have been thoroughly debated by the parties in the internal appeal proceedings. In these circumstances, it would be excessively formalistic to find that there has been a breach of the right to be heard in this case."
internal appeal; due process
Considerations 11 and 12
"The ITU acknowledges that none of the Staff Regulations or Staff Rules establishes conditions for the reintegration of a staff member on special leave who has lost the link with his or her previous post. It explains that the practice it has devised in this respect stems from the need to reconcile the staff memberís interests in returning to active service and the organisationís interests in ensuring the smooth operation of services. It does not dispute the right of a staff member on special leave to be reintegrated within the organisation, but submits that this right is different in nature when that personís link with his or her previous post has disappeared. In other words, if this link still exists, on returning from his or her special leave the staff member must be directly assigned to his or her post, or an equivalent post, without having to go through a selection procedure. If this link has disappeared, the organisation still has a duty to reintegrate that person, but this is now an obligation of endeavour and no longer an obligation of result. It therefore no longer has a duty to appoint that staff member directly to an available post, but a duty conscientiously to make all the efforts which may be required of it to ensure that the person concerned finds a position in line with his or her competencies.
The Tribunal considers that this solution takes reasonable account of the interests of the staff member who has obtained special leave for a fairly long period of time during which it can happen, for example, this his or her post is abolished or that restructuring takes place with the result that an equivalent post cannot be identified immediately. The attention of the person concerned must be duly drawn to this possibility when he or she requests such leave. This solution also meets the legitimate interests of the organisation, which are protected by the principles governing appointments, transfers and promotions set forth in Staff Regulation 4.1 on the basis of Article 27, No. 154, of the ITU Constitution. These provisions state the necessity of securing for the ITU the service of persons possessing the highest standards of efficiency, competence and integrity."