Judgment No. 3908
1. The ICC shall pay the complainant material damages in the sum of 180,000 euros.
2. The ICC shall pay the complainant moral damages in the sum of 40,000 euros.
3. The ICC shall pay the complainant costs in the amount of 2,000 euros.
4. All other claims are dismissed.
5. The applications to intervene are dismissed.
The complainant contests the decision to abolish his post and terminate his appointment.
complaint allowed; fixed-term; abolition of post; termination of employment
The Tribunal notes, at the outset, that the Appeals Board’s report is a balanced and thoughtful analysis of the issues raised in the internal appeal and, on its analysis, the conclusions and recommendations were justified and rational and the recommendations made respectfully. It is a report of a character which engages the principle recently discussed by the Tribunal in Judgment 3608, consideration 7, that the report warrants “considerable deference” (see also, for example, Judgments 2295, consideration 10, and 3400, consideration 6).
ILOAT Judgment(s): 2295, 3400
internal appeals body; report
[T]he Tribunal has repeatedly observed, and recently done so in Judgment 3862, consideration 20, that: “[t]he executive head of an international organisation is not bound to follow a recommendation of any internal appeal body nor bound to adopt the reasoning of that body. However an executive head who departs from a recommendation of such a body must state the reasons for disregarding it and must motivate the decision actually reached.”
ILOAT Judgment(s): 3862
duty to substantiate decision; executive head; final decision; motivation
In the present case, the Principles could not have circumscribed the obligation of the ICC to explore other employment options that may not have involved the application of the express and prescriptive provisions of the Principles (on the assumption they were lawful). This is particular so having regard to the status of the Principles. They are in a circular promulgated by the Registrar notwithstanding that they were formulated in consultation with staff. Nonetheless the Principles are an instrument of the Registrar. The executive head of an organisation cannot, by edict, absolve the organisation from complying with principles of law applying to international civil servants. If it were otherwise, those principles of law would be at material risk of erosion over time.
[I]n the context of the abolition of a position, the organisation’s duty to explore reassignment transcends simply providing a procedural advantage and requires the application of process biased in favour of the staff member whose position has been abolished and which is likely to promote appointment to another position. The rationale is obvious. A person who has secured appointment or reappointment to a position within an international organisation can ordinarily expect to maintain the position on the agreed terms of the appointment or reappointment putting aside, for example, illness or incapacity, non-performance or misconduct. In practical terms, staff may make adjustments to their circumstances including financial and family arrangements based on the assumption that they will maintain the position on the agreed terms.
international civil service principles
[T]he Tribunal has long recognised the right of an international organisation to restructure and abolish positions (see, for example, Judgment 2742, consideration 34). This will imperil the continuing employment of the occupants of those abolished positions. However a concomitant of that right to abolish positions is an obligation to deal fairly with the staff who occupy those abolished positions. That extends to finding, if they exist, other positions within the organisation for which those staff have the experience and qualifications. The Tribunal accepts that there may be other disqualifying criteria. One might be, in a particular set of circumstances, that the number of staff whose positions have been abolished exceeds the number of available positions. However the imprecise concept of “unsuitability” as assessed by a selection committee as if it were a competition for initial appointment, might not be enough to disqualify a staff member unless it can be demonstrated that there is a real and substantial reason why a staff member in an abolished position will not be able to perform the duties of the available position satisfactorily notwithstanding they have the required qualifications and experience. This would be all the more so, as is the case in these proceedings, where the functions of the new position reflect some of the functions of the position which is being abolished and there has been no material adverse assessment of the performance of the staff member in the performance of those functions in the abolished position.
The Tribunal is satisfied that the ICC did not take adequate steps to reassign the complainant after the abolition of his post. To reject his candidature for a number of available positions on the basis that he was not suitable as part of an assessment in a competitive selection process, falls short of what was required. There is no reason, discernible from the pleas, why the complainant could not have been reassigned or redeployed to one of the new positions to which some of the functions were assigned from his abolished position and in particular the Deputy Legal Counsel position discussed in the preceding consideration.
ILOAT Judgment(s): 2742
organisation's duties; abolition of post; reassignment; reorganisation
The complainant’s appointment, but for the abolition of his post, was due to expire on 13 March 2017. In those circumstances it is inappropriate to order the complainant’s reinstatement. Nonetheless he is entitled to moral and material damages for the ICC’s failure in its duty of care towards him to take adequate steps to find him a new position on the abolition of his existing position and unlawfully terminating his employment.
reinstatement; fixed-term; material damages
There are three applications to intervene. Two of the applicants signed separation agreements agreeing not to contest the terms of the agreement. This is a material factual and, potentially, legal difference which justifies refusal of the applications to intervene. The third applicant has separate proceedings ongoing before the Tribunal challenging the termination of employment. Intervention in the present proceedings is not, in those circumstances, warranted. The applications to intervene are dismissed.