Judgment No. 3933
1. The FAO shall pay the complainant 16,000 euros in moral damages.
2. The FAO shall pay the complainant 1,000 euros in costs.
3. All other claims are dismissed.
The complainant challenges the decision to terminate his appointment.
complaint allowed; permanent appointment; abolition of post; non-renewal of contract
There is some support in the Tribunal’s case law for the proposition that it is open to the Tribunal to examine the circumstances surrounding the abolition of a post in a challenge to the subsequent termination of a staff member’s employment, even if no legal challenge was made, within time or at all, to the abolition of the post itself (see Judgment 3172, consideration 16). However even if, in the face of more recent case law referred to in the preceding consideration, it is open to the Tribunal to do so, it is for the limited purpose of, for example, ascertaining whether there has been an abuse of authority which entails consideration of whether the decision was taken for an improper purpose. The case law certainly does not provide a licence to examine all or any other aspects of the decision to abolish the post in the context of dealing with a challenge to the subsequent termination of employment.
ILOAT Judgment(s): 3172
abolition of post; judicial review; misuse of authority; abuse of power
[I]t is open to the complainant to impugn the redeployment process, as he does in his pleas under his second heading, if a failure to redeploy him has led to the termination of his employment (see, for example, Judgment 3727).
ILOAT Judgment(s): 3727
abolition of post; reassignment; termination of employment
The first topic concerns the provision to the Appeals Committee of a memorandum setting out the reasons of the Director, CIO for not accepting the complainant’s reassignment to the position of Chief, Global Operations Branch, CIO. The FAO does not contest that the document was provided to the Committee but not the complainant but notes, as the Appeals Committee did in its report, that the document was marked “strictly confidential”. However this does not provide a basis for exceptionally not providing the complainant with a copy of a document, and potentially an important document, in adversarial proceedings such as the internal appeal where the document is relied on by the Organization (see, for example, Judgments 3688, consideration 29, 3586, consideration 16, and 3862, consideration 11). The complainant was entitled to see the evidence advanced by the FAO in the internal appeal in order to equip him to provide rebutting evidence or to otherwise question the evidence or comment on it. The complainant was denied this opportunity. He is entitled to moral damages.
ILOAT Judgment(s): 3586, 3688, 3862
evidence; confidential evidence; adversarial proceedings
As to delay in the internal appeals process, the Tribunal notes that the internal appeal to the Appeals Committee was lodged on 23 June 2014. The Committee, it appears, did not meet to consider the case until 14 October 2015 and reported on 19 February 2016 resulting in a decision of the Director-General on 9 May 2016. This delay is excessive (though the time taken for the initial appeal to the Director-General is not) and no explanation or answer is provided by the FAO in its reply. Indeed it makes no submissions on this question at all. The complainant is entitled to moral damages for this delay.
internal appeal; delay; delay in internal procedure
Further criticism is made by the complainant about the failure to consider him for alternative assignments and reference is made to several positions he says he could have been redeployed to. However, his pleas on this topic are at a highly generalised level and do not provide a foundation for a conclusion that the redeployment process was legally flawed.
material injury; reassignment; loss of opportunity