Judgment No. 3929
1. The decision to abolish the complainantís post and the decision to terminate her appointment are set aside.
2. The UPU shall pay the complainant material damages calculated as indicated in consideration 15 of the judgment.
3. It shall pay her moral damages in the amount of 30,000 Swiss francs.
4. It shall pay her costs in the amount of 7,000 Swiss francs.
5. All other claims are dismissed, as is the counterclaim for costs.
The complainant challenges the decisions to abolish her post and to terminate her appointment while she was on sick leave.
complaint allowed; decision quashed; fixed-term; abolition of post; termination of employment
According to consistent case law, ď[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 reachedĒ (see 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 final decision [...].
ILOAT Judgment(s): 3208, 3727, 3862
duty to substantiate decision; final decision
The Tribunal recalls that ď[a]ccording to firm precedent, a decision concerning the restructuring of an international organisationís 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 organisationís 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)Ē (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 Tribunalís case law: ď[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 complainantís post this was genuine. It has not done so. In the absence of that evidence, it is determined that the complainantís post was unlawfully abolished and the claim on this ground is well foundedĒ (see Judgment 3688, under 18). In the Tribunalís 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 Tribunalís 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
In light of the above considerations, the decision to abolish the complainantís post was unlawful and must be set aside. The consequent termination of appointment, based on the unlawful abolition of her post, must also be set aside. Considering the difficulties raised by the time elapsed and the subsequent restructuring of the UPU, the Tribunal shall not order reinstatement. Having regard especially to the complainantís age, qualifications, experience, and the length of time spent in the UPUís service, it is reasonable to award her material damages for the loss of opportunity to continue working with the UPU until her retirement age in an amount equal to 30 monthsí gross salary with reference to her last monthís gross salary. The UPU must also pay the complainant the equivalent of the employerís contribution that would have been due to the Provident Fund during those 30 months.
The complainant is also entitled to an award of moral damages, including for the failure to properly assess her illness, which the Tribunal will set at 30,000 Swiss francs.
moral injury; reinstatement; permanent appointment; material damages