Judgment No. 3754
1. WHO shall pay the complainant 120,000 Swiss francs by way of material damages.
2. WHO shall pay the complainant 15,000 Swiss francs by way of moral damages.
3. WHO shall pay the complainant 8,000 Swiss francs costs.
4. All other claims are dismissed.
The complainant, a former WHO staff member, challenges the decision to terminate his continuing appointment pursuant to the abolition of his post.
complaint allowed; abolition of post
[T]he Tribunal’s case law does establish a duty of care on an organisation which, in relation to the exercise of the right of appeal, obliges the organisation to help a staff member who is mistaken in the exercise of the right (see, for example, Judgment 2345, consideration 1). Equally, however, there is corresponding obligation on members of staff to inform themselves of the rules and regulations concerning dispute resolution (see Judgment 1734, consideration 3).
ILOAT Judgment(s): 1734, 2345
duty to inform
Early judgments of the Tribunal, such as Judgment 938 relied on by the complainant, may have been thought to establish a principle of general application that an official’s employment could not be terminated while the official was on sick leave. However it is clear that no such principle of general application has been established by the Tribunal’s case law. This issue was discussed by the Tribunal in Judgment 3175, consideration 14.
ILOAT Judgment(s): 938, 3175
termination of employment; sick leave
The loss of employment by the abolition of a post can be particularly acute for a person who has been employed by the one organisation for a very lengthy period and is of advancing years. It could be all the more acute if the area or field of employment has a significant technological component in which the technology is evolving continuously. At a high-level of generality, an organisation’s duty has, in relation to reassignment an official whose post has been abolished, been described as “[doing] its utmost to find a post matching the complainant’s qualifications” (see Judgment 2830, consideration 9), or “[doing] all that it can” to reassign the official (see Judgment 3437, consideration 6).
ILOAT Judgment(s): 2830, 3437
abolition of post; reassignment; duty of care
The complainant lost the opportunity of maintaining continuing employment and, in this respect, is entitled to material damages. Having regard, amongst other things, to the complainant’s age, grade and the status of his employment (continuing appointment) and the circumstances giving rise to the flaw in the process identified in the reasoning of the Tribunal, the Tribunal will award material damages [...].
It must be accepted that Staff Rule 1050.3 identifies the paramount consideration for reassignment as “the necessity of securing the highest standards of efficiency, competence and integrity with due regard given to the performance, qualifications and experience of the staff member concerned”. Equally, however, it must be accepted that Staff Rule 1050.7 provides that the affected staff member “may be provided with training to enhance specific existing qualifications”. WHO contends in its reply that the use of the term “may be provided” denotes a possibility only and “certainly not an obligation to offer training”. This is true but the comment misses the point. This provision is more appropriately viewed as creating a tool that is available to WHO to facilitate reassignment in circumstances where an official may, with some retraining, be reassigned but without it, faces separation because the official’s post has been abolished. Also, Staff Rule 1050.7 should not be taken to impliedly limit WHO’s overarching obligation to make “reasonable efforts” to reassign. The type of training is, in this provision, cast in fairly narrow terms (to enhance specific existing qualifications). However, there may be cases where training of a broader character might appropriately be provided by WHO as part of the process of making “reasonable efforts” to reassign.
interpretation of rules