Judgment No. 3490
1. The Director General’s decisions of 27 April 2012 and 4 August 2011 are set aside.
2. The IAEA shall, within three months of the delivery of this judgment, have the job classification of the complainant’s former post reviewed by an independent classifier based on the 2 December 2008 job description.
3. The IAEA shall pay the complainant moral damages in the amount of 15,000 euros.
4. It shall also pay the complainant costs in the amount of 4,000 euros.
5. All other claims are dismissed.
The complainant impugns the decision not to grant her request for retroactive reclassification of her former post.
complaint allowed; internal appeal; delay; decision quashed; disclosure of evidence; post classification
"This case illustrates very well the negative consequences flowing from an unfounded refusal to make the requisite disclosure. It is well established in the case law that a “staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) its decision against him”. Additionally, “[u]nder normal circumstances, such evidence cannot be withheld on grounds of confidentiality” (see Judgment 2700, under 6; see also Judgment 3264, under 15)."
ILOAT Judgment(s): 2700, 3264
confidential evidence; disclosure of evidence
"It follows from the JAB’s failure to obtain and consider evidence central to the claim that its conclusion and recommendation are tainted by an error of law. As the Director General adopted the conclusion and accepted the recommendation, his decision is also tainted by an error of law (see Judgment 2742, under 40)."
ILOAT Judgment(s): 2742
discretion; disregard of essential fact; mistake of law; final decision
"[I]n Judgment 3273, under 6, the Tribunal had occasion to reiterate that “an evaluation or classification exercise is based on the technical judgment to be made by those whose training and experience equip them for that task. It is subject to only limited review. The Tribunal cannot, in particular, substitute its own assessment for that of the organisation. Such a decision cannot be set aside unless it was taken without authority, shows some formal or procedural flaw or a mistake of fact or of law, overlooks some material fact, draws clearly mistaken conclusions from the facts or is an abuse of authority (see, for example, Judgment 2581).”"
ILOAT Judgment(s): 2581, 3273
post classification; judicial review; reclassification
"The complainant asks the Tribunal to order the retroactive reclassification of the post […] and to order the IAEA to pay material damages equivalent to the salary differential […] taking into account step increases […]. First, the reclassification of a post is clearly beyond the competence of the Tribunal as the authority to do so rests exclusively with the Director General and as delegated. Second, granting the request for the material damages would amount to the Tribunal substituting its own assessment for that of the competent authority contrary to well settled case law (for example, see Judgments 2284, under 9, and 3284, under 12)."
ILOAT Judgment(s): 2284, 3284
competence of tribunal; order; post classification; reclassification
"The complainant is […] entitled to moral damages for the IAEA’s breach of its duty to disclose at a minimum, the key document on which the decision was based."
moral injury; delay; disclosure of evidence
As the Director General’s decisions [...] are based on a fundamentally flawed process and involve an error of law, they will be set aside. The IAEA will be ordered to have the job classification of the complainant’s former post based on its 2 December 2008 job description reviewed by an independent classifier within three months of the delivery of this judgment. If the review results in a reclassification of the post to grade G-6, the IAEA will be obliged to pay the complainant the salary differential between a G-5 and G-6 grade, taking into account step increases, effective March 2003, plus interest at 5 per cent per annum.
post classification; reclassification