Judgment No. 3900
1. The CDE shall pay the complainant damages calculated as indicated in consideration 15 [of the judgment] in compensation for all the injury which she has suffered.
2. The CDE shall also pay the complainant costs in the amount of 5,000 euros.
3. All other claims are dismissed.
The complainant challenges the decision to terminate her contract owing to the closure of the CDE and the terms and conditions of that termination.
complaint allowed; fixed-term; abolition of post; termination of employment; closure of organisation
As the Tribunal has consistently held, “[w]hen an organisation has to abolish a position occupied by a staff member holding a continuous appointment, it [...] has a duty to do all that it can to reassign that person as a matter of priority to another post matching his or her abilities and grade.” (See Judgment 3755, under 6.) This possibility must be explored before a decision is taken to abolish a post (see Judgments 2294, under 9, 3169, under 10 and 13, and 3238, under 13) and it is up to the organisation to prove that it has made every possible effort to reassign the staff member (see Judgments 2830, under 9, 3169, under 14, 3238, under 14, and 3755, under 19).
[...] As the institution was on the point of ceasing to exist, there could be no question of reassigning the complainant to another post within it. The Centre cannot therefore be criticised for not exploring that avenue.
ILOAT Judgment(s): 2294, 2830, 3169, 3238, 3755
permanent appointment; abolition of post; reorganisation; duty of care
A steady line of precedent has it that “[w]hile it is true that international organisations have the right to restructure their operations, abolish posts if necessary and consequently terminate the appointment of their staff members who are affected by the planned restructuring (see Judgment 1854, under 10), they cannot simply terminate their appointment – at least not if they hold an appointment of indeterminate duration – without first taking suitable steps to find them alternative employment (see, for example, Judgments 269, under 2, 1745, under 7, 2207, under 9, and 3238, under 10).” (See Judgment 3755, under 6, and also Judgment 3169, under 10.) Only when reassignment proves impracticable may it have recourse to the ultima ratio measure of terminating their appointment (see Judgment 2830, under 8(a)).
Although this precedent concerns redeployment within the same organisation, it may be extended to the situation where an organisation is closed and replaced with a structure mandated to do all or part of the work of the organisation which has been wound up. In this case, it is incumbent upon the organisation which is being wound up to examine whether some or all of its staff members can be absorbed by the new structure.
ILOAT Judgment(s): 269, 1745, 1854, 2207, 2830, 3169, 3238, 3755
abolition of post
By refusing to contemplate the slightest possibility of CDE staff members being employed in the new structure, and by even going so far as to oppose that option at a time when the nature of the new structure was still undefined, the Director-Curator breached the duty of care which an international organisation owes to its staff.
reorganisation; duty of care
It must first be emphasised that a steady line of precedent has it that the Tribunal encourages the settlement of disputes by agreement (see Judgments 1847, under 11, 1924, under 10, 2091, under 13, and 2220, under 6). As recently stated in Judgment 3731, under 7, “[i]t is now almost universally recognised that the settlement of legal disputes is, in many cases, a preferable outcome than the full ventilation of legal and factual issues in contested litigation to be resolved by the adjudication of a court of justice. Some cases, by their very nature, will take that path. However, many others are more appropriately resolved by discussion and agreement. The parties control the terms of an agreed outcome even if, as is almost always the case, it involves some reciprocated compromise. There appears to be a regrettable attitude amongst some parties before the Tribunal, both individual complainants and defendant organisations alike, not to entertain the possibility of settlement by agreement. It should be otherwise.”
ILOAT Judgment(s): 1847, 1924, 2091, 2220, 3731
settlement out of court
[R]eference must be made to the Tribunal’s consistent precedent that “the principle of equal treatment requires, on the one hand, that officials in identical or similar situations be subject to the same rules and, on the other, that officials in dissimilar situations be governed by different rules defined so as to take account of this dissimilarity (see, for example, Judgments 1990, under 7, 2194, under 6(a), 2313, under 5, or 3029, under 14).” (See Judgment 3787, under 3.)
The Tribunal is of the opinion that staff members who signed an agreement are in different legal situation to that of their colleagues, which justifies the difference in treatment to which the complainant objects (see Judgments 1934, under 7, and 1980, under 7). She therefore has no valid grounds for relying on a breach of the principle of equal treatment.
ILOAT Judgment(s): 1934, 1980, 1990, 2194, 2313, 3029, 3787
The allegation that awarding an indemnity higher than that provided for in the Staff Regulations only to staff members who were prepared to sign the settlement agreement and who renounced any right of appeal constitutes an abuse of authority is tantamount to saying that an agreement containing a waiver of the right of any action or appeal would be flawed. This is, however, inconsistent with the case law of the Tribunal which recalled in Judgment 3867, under 5, that “in the context of a settlement, as is the case here, the infringement of an official’s right to appeal or file a complaint is not unlawful. On the contrary, it is entirely acceptable for an official to waive such rights in return for the benefits gained from the settlement. This is, furthermore, common practice in the context of separation agreements, as here”. Naturally, as the same judgment makes clear, the agreement must make provision for benefits over and above those stemming from the applicable staff regulations, otherwise this would amount to improper pressure brought to bear on the official in return for nothing but the organisation’s honouring of its own duties (see Judgment 2715, under 13; see also Judgment 3091, under 13).
ILOAT Judgment(s): 2715, 3091, 3867
waiver of right of appeal; agreed termination; lack of consent
In view of the CDE’s closure, the Tribunal cannot grant the complainant’s request that she be reinstated in her former post.
reinstatement; closure of organisation