Judgment No. 3928
1. The abolition decision and the termination decision are set aside.
2. The UPU shall reinstate the complainant as indicated in consideration 20 of the judgment.
3. It shall pay the complainant interest calculated as indicated in consideration 20.
4. It shall pay him moral damages in the amount of 20,000 Swiss francs.
5. It shall also pay him costs in the amount of 7,000 Swiss francs.
6. All other claims are dismissed, as is the counterclaim for costs.
The complainant challenges the decisions to abolish his post and to terminate his appointment while he was on sick leave.
complaint allowed; decision quashed; reinstatement; permanent appointment; abolition of post; termination of employment
Consistent case law holds that “[t]he executive head of an international organization 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” (Judgment 3862, under 20; see also Judgments 3208, under 10 and 11, 3727, under 9, and the case law cited therein). In the present case the Director General did not adequately motivate his decision. This flaw is enough to set aside the impugned decision [...].
ILOAT Judgment(s): 3208, 3727, 3862
duty to substantiate decision; final decision
The Tribunal recalls that “[a]ccording to firm precedent, a decision concerning the restructuring of an international organisation’s services, which leads to the abolition of a post, may be taken at the discretion of its executive head and is subject to only limited review by the Tribunal. The latter must therefore confine itself to ascertaining whether the decision was taken in accordance with the rules on competence, form or procedure, whether it involves a mistake of fact or of law, whether it constituted abuse of authority, whether it failed to take account of material facts, or whether it draws clearly mistaken conclusions from the evidence. The Tribunal may not, however, supplant an organisation’s view with its own (see, for example, Judgments 1131, under 5, 2510, under 10, and 2933, under 10). Nevertheless, any decision to abolish a post must be based on objective grounds and its purpose may never be to remove a member of staff regarded as unwanted. Disguising such purposes as a restructuring measure would constitute abuse of authority (see Judgments 1231, under 26, 1729, under 11, and 3353, under 17)” (Judgment 3582, under 6).
ILOAT Judgment(s): 1131, 1231, 1729, 2510, 2933, 3353, 3582
abolition of post; reorganisation; discretion; limits; misuse of authority; abuse of power
According to the Tribunal’s case law: “[w]hether the post was abolished for financial reasons is a question of fact. Those facts were within the knowledge of [the organization] and it must show that when it advanced financial reasons as a ground for the abolition of the complainant’s post this was genuine. It has not done so. In the absence of that evidence, it is determined that the complainant’s post was unlawfully abolished and the claim on this ground is well founded” (see Judgment 3688, under 18). In the Tribunal’s view, the UPU has not presented sufficient evidence to support its assertion that the abolition of posts was for urgent financial reasons.
ILOAT Judgment(s): 3688
burden of proof; abolition of post; budgetary reasons
According to the Tribunal’s case law, an international organisation has a duty of care which, in relation to the exercise of the right of appeal, obliges the organisation to assist a staff member who is mistaken in the exercise of that right. If the staff member has mistakenly requested a review of a decision to the wrong authority, that authority must forward the request to the appropriate one (see Judgments 3754, under 11, and 2345, under 1).
ILOAT Judgment(s): 2345, 3754
internal appeal; duty of care
It should also be noted that, in breach of the UPU’s duty of care and duty to protect the dignity of its staff members, the complainant was not even notified directly of the abolition of his post. He was instead informed, as all staff, via the publication of a corrigendum of January 2015 to internal memorandum No. 02/2015, stating, inter alia, that a “P3 Post (French Translation Service)” would be abolished (along with the other four posts). The Tribunal recalls that “[t]he decision to abolish a post must be communicated to the staff person occupying the post in a manner that safeguards that individual’s rights. These rights are safeguarded by giving proper notice of the decision, reasons for the decision and an opportunity to contest the decision. As well, subsequent to the decision there must be proper institutional support mechanisms in place to assist the staff member concerned in finding a new assignment” (see Judgment 3041, under 8).
ILOAT Judgment(s): 3041
duty to inform; abolition of post; duty of care
To contest the complainant’s assertion of being a “competent and loyal” staff member, the UPU improperly cites the fact that the complainant had filed two previous complaints with the Tribunal. The Tribunal notes that staff members have the right to bring complaints alleging non-observance, in substance or in form, of the terms of their appointment and of the provisions of the Service Regulations, in accordance with the provisions of Article II of the Statute of the Tribunal. International organisations shall not hold the proper exercising of that right against the staff member.
ILOAT reference: Article II of the Statute
right of appeal; conduct