Judgment No. 3918
1. WHO shall pay the complainant 80,000 United States dollars by way of material damages.
2. WHO shall pay the complainant a further 15,000 United States dollars by way of moral damages.
3. WHO shall pay the complainant 5,000 United States dollars costs.
4. All other claims are dismissed.
The complainant challenges the decision to terminate his continuing appointment pursuant to the abolition of his post.
complaint allowed; permanent appointment; abolition of post; termination of employment
Considerations 3 & 4
The relief [the complainant] seeks is:
ď(a) The cancellation of his reassignment process as based on discrimination, non[-]application of guidelines and incomplete and biased review of the facts;
(c) His immediate rein[statement] to a position suited to his qualifications and experience until his retirement in 2017 [and the payment of all entitlements during that time];"
The first point to be made is that this judgment of the Tribunal is being given after the date on which the complainant would have retired from WHO. Accordingly, there would be no utility in making orders to the same effect of the proposed orders in (a) and (c) [...].
claim; reinstatement; retirement
[T]he Director-General accepted in her decision of 17 June 2015 that the complainant had lost an opportunity to be reassigned to another position within the Organization because of a failure, in the reassignment process, to consider the complainant for one of two specified positions. This is not contested by WHO in its reply. The Tribunalís case law establishes that, in such circumstances, a complainant is entitled to material damages (see, for example, Judgments 3756, consideration 14, 3755, consideration 20, 3754, consideration 21, 3753, considerations 15 and 17, and 3752, consideration 17). [...] At the time of the complainantís termination of appointment, he had approximately five years remaining employment under his continuing appointment, was 55 years old and had served as an official of WHO for a little over 30 years. These factors influence the assessment of the material damages, particularly the fact that the complainant was some considerable time off retiring. The Tribunal assesses the material damages for this lost opportunity in the sum of 80,000 United States dollars.
ILOAT Judgment(s): 3752, 3753, 3754, 3755, 3756
abolition of post; termination of employment; loss of opportunity; material damages
[H]aving established a procedural rule about the time the reassignment process should take, WHO was bound to comply with it (see, for example, Judgment 2170, consideration 14), whatever, in practical terms, might be thought to have been positive elements accruing to the complainant. There is no reason to doubt that the length of time taken did cause additional stress and anxiety to the complainant. For this, the complainant is entitled to moral damages assessed in the sum of 15,000 United States dollars.
ILOAT Judgment(s): 2170
moral injury; time limit; patere legem; reassignment
An organisation which has restructured, abolished positions, and is in the process of trying to reassign staff members whose positions have been abolished is under a positive duty to communicate with them in a way that promotes the likelihood of reassignment (see, for example, Judgments 2902, consideration 14, 3439, consideration 9, and 3755, consideration 9). It is no answer to suggest that the staff member is under a duty to inform herself or himself and failed to do so. However, again, this is another manifestation of the flawed reassignment process by which the complainant was deprived of the opportunity of being reassigned.
ILOAT Judgment(s): 2902, 3439, 3755
duty to inform; abolition of post; reassignment