Judgment No. 3920
Decision
1. WHO shall pay the complainant 15,000 United States dollars by way of moral damages.
2. WHO shall pay the complainant 1,000 United States dollars in costs.
3. All other claims are dismissed.
Summary
The complainant challenges the decision to terminate her fixed-term appointment pursuant to the abolition of her post.
Judgment keywords
Keywords
complaint allowed; fixed-term; abolition of post; termination of employment
Consideration 5
Extract:
The Tribunal has stated on a number of occasions, and recently with increasing frequency, that it is inappropriate to effectively incorporate by reference into the pleas before the Tribunal arguments, contentions and pleas found in other documents, often a document created for the purposes of internal review and appeal (see, for example, Judgments 3842, consideration 4, 3692, consideration 4, and 3434, consideration 5). In this matter, the Tribunal will only have regard to pleas in the complainant’s brief and rejoinder and will disregard any additional, supplementary or other pleas in the Statement of Appeal before the HBA.
Reference(s)
ILOAT Judgment(s): 3434, 3692, 3842
Keywords
complaint; formal requirements
Consideration 10
Extract:
It is well settled in the Tribunal’s case law that if a decision is taken to abolish a post, then the staff member occupying the post is entitled to know the reasons for that decision in a manner that safeguards the individual’s rights (see, for example, Judgments 3290, consideration 14, and 3041, consideration 8).
Reference(s)
ILOAT Judgment(s): 3041, 3290
Keywords
duty to substantiate decision; abolition of post
Considerations 11-12
Extract:
If, as a matter of practice or by operation of staff rules, regulations or other normative legal documents, internal documents are created by management proposing the abolition of a post and the post is abolished, the organisation is not under a legal obligation to provide those documents to the person whose post is to be abolished (see Judgment 2885, consideration 6). Nevertheless, the organisation is obliged to inform the affected staff member of the reasons for the abolition of the post. That obligation can be discharged (though it was not in the present case) by setting out in another document, as is often the case in a letter informing the staff member that the post is abolished, reasons which may have been discussed in internal management documents created in the lead-up to the decision to abolish the post. [...]
Even if a document is confidential, this ordinarily does not provide a basis for not providing the complainant with a copy of it, which might potentially be an important document, in adversarial proceedings such as the internal appeal procedure where the document is relied on by the organization (see, for example, Judgment 3862, consideration 11). The complainant, in this case, was entitled to see the evidence advanced by the Organization in the internal appeal procedure in order to equip her to provide rebutting evidence or to otherwise challenge the evidence or comment on it. These legal principles are rooted in judgments of the Tribunal made well before these proceedings commenced (see, for example, Judgment 2700, consideration 6). While it is not an issue raised directly by the complainant in her pleas, this failure to uphold the complainant’s due process rights warrants an award of moral damages which the Tribunal assesses in the sum of 15,000 United States dollars.
Reference(s)
ILOAT Judgment(s): 2885
Keywords
duty to inform; abolition of post
Consideration 13
Extract:
[W]hen a post is abolished for financial reasons it is incumbent on the organisation to demonstrate that this was genuine, given that the relevant facts are within the knowledge of the organisation (see Judgment 3688, consideration 18).
Reference(s)
ILOAT Judgment(s): 3688
Keywords
burden of proof; abolition of post; budgetary reasons
Consideration 18
Extract:
The Tribunal observed in Judgment 3647, consideration 9, that: “[t]he Tribunal’s case law recognises that the executive head of an international organisation may cancel a competition in the interest of the organisation if, among other reasons, it becomes apparent that the competition will not enable the post concerned to be filled, and that she or he may, if need be, decide to hold a new competition on different terms (see, for example, Judgments 1223, under 31, 1771, under 4(e), 1982, under 5(a), and 2075, under 3). However, the condition relating to the interests of the organisation must actually be met, so that the cancellation of the initial process is based on a legitimate reason. In this matter as in any other, arbitrary decision-making is unacceptable.”
[...] In most of the rules of the international organizations which have accepted the Tribunal’s jurisdiction, competitions are a fundamental mechanism of the selection of international civil servants for positions within international organizations and their integrity must be protected. However, in the present case, the complainant had not been shortlisted because she did not have the requisite years of experience. Thus, she suffered no detriment as a result of the cancellation of the competition.
Reference(s)
ILOAT Judgment(s): 1223, 1771, 1982, 2075, 3647
Keywords
competition; competition cancelled; organisation's interest
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