Judgment No. 3727
Decision
1. The Federation shall pay the complainant 66,000 Swiss francs as moral damages within 30 days of the public delivery of this judgment.
2. The Federation shall pay the complainant 6,000 Swiss francs as costs within 30 days of the public delivery of this judgment.
3. Interest shall accrue at the rate of 5 per cent per annum on the above amounts for any period in which the amounts required to be paid by orders 1 and 2 remain unpaid after 30 days from the public delivery of this judgment.
4. All other claims are dismissed.
Summary
The complainant, whose post was abolished following a restructuring exercise, challenges the new final decision taken by the Secretary General pursuant to Judgment 3208.
Judgment keywords
Reference(s)
ILOAT Judgment(s): 3208
Keywords
complaint allowed; abolition of post; termination of employment
Consideration 9
Extract:
The Tribunal’s observations were not intended to mark out the boundaries of what is required by the executive head of an organisation (or a person acting on her or his behalf) in providing reasons for a conclusion which is at odds with the conclusions and recommendations of an internal appeal body. It is not sufficient to explain why, in the opinion of the executive head of the organisation, the internal appeal body approached an issue in a way that was flawed. It is also necessary to explain the basis on which the conclusion actually reached by the executive head of the organisation was arrived at if it was different to the conclusion of the internal appeal body (see, for example, Judgments 2278, consideration 9, 2347, consideration 14, and 2699, consideration 24). In the present case, it was necessary for the Secretary General not simply to identify perceived flaws in the reasoning or procedures of the Commission said to undermine its conclusion that the post had evolved but, in addition, to explain his reasons for the conclusion that the post had been “cut”.
Reference(s)
ILOAT Judgment(s): 2278, 2347, 2699
Keywords
motivation
Consideration 10
Extract:
[T]he complainant was entitled to a more complete explanation of why his position had been “cut” which should have involved a more thorough or detailed comparison of the duties and responsibilities of the position he then held [...] and that of the new position [...]. Accordingly, the Tribunal is satisfied that the impugned decision does not meet the requirements established by the Tribunal’s jurisprudence.
Keywords
motivation
Consideration 15
Extract:
What the Federation does not do in its pleas and evidence is to demonstrate that it corresponded or otherwise communicated with the complainant about specific available positions encouraging the complainant to apply for or pursue them or to demonstrate that, at the time, it undertook any sort of analysis of positions which might, at least potentially, have been positions to which the complainant might be transferred as contemplated by Article 11.3.2 of the Staff Regulations. It was not sufficient for the Federation to take the approach, as it apparently did, that it was incumbent on the complainant to identify other positions for which he might be suitable and then apply for those positions. The Federation bore the onus of showing the complainant was not able to remain in the Federation’s service in some capacity (see Judgment 2830, consideration 9). A much more active role was required of the Federation in circumstances where a long-serving member of staff towards the end of his career was facing the prospect of his employment being terminated because of redundancy. The Federation’s obligations have been described as requiring it to do “its utmost to find [an official facing redundancy] a post which matched his skills and level of responsibility” [...] (see Judgment 2090, consideration 7). The Federation failed in its duty towards the complainant and, in this respect, the complainant is entitled to moral damages.
Reference(s)
ILOAT Judgment(s): 2090, 2830
Keywords
moral injury; burden of proof; respect for dignity; abolition of post; reassignment; duty of care
Consideration 17
Extract:
In the present case, much of the delay has arisen as a result of the complainant successfully challenging the legality of steps taken by the Federation in dealing with his grievance.
Keywords
delay
Consideration 18
Extract:
One [question] is a request by the complainant that the Federation produce certain documents. The request is expressed at a high level of generality and can properly be characterised as a “fishing expedition” (see, for example, Judgment 3419, consideration 6), and, for that reason, should be rejected.
Reference(s)
ILOAT Judgment(s): 3419
Keywords
disclosure of evidence; fishing expedition
Consideration 18
Extract:
The Tribunal is satisfied that the complaint can be fairly and appropriately determined by reference to the written material filed by the parties. Accordingly, no order is made for an oral hearing.
Keywords
oral proceedings
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