Judgment No. 3934
1. The decisions of the Director-General of UNESCO of 13 August 2014 and 8 February 2013 are set aside.
2. UNESCO shall pay the complainant financial compensation for the material injury resulting from the refusal to extend his appointment as indicated in consideration 15 of the judgment.
3. UNESCO shall pay the complainant compensation in the amount of 10,000 euros for moral injury.
4. It shall also pay him 1,000 euros in costs.
5. All other claims are dismissed, as is UNESCO’s counterclaim.
The complainant challenges the decision not to transfer him and not to extend his appointment beyond the statutory retirement age.
complaint allowed; decision quashed; retirement
In his second complaint, which is also the subject of a judgment delivered in public this day, the complainant requested that his two complaints be joined. However, although they rest partly on the same arguments, their subject-matter is clearly distinct and they raise different questions of law. The Tribunal hence concurs with the defendant that a joinder is not appropriate.
Although the complaint of moral harassment which the complainant had filed against the Director of the Office was the subject of separate proceedings, in his appeal against the decision not to extend his appointment the complainant also alleged that that decision stemmed from a wish to discriminate and retaliate against him which itself formed part of the harassment. [...] [I]n its opinion of 11 July 2014 the Appeals Board noted, before recommending that his appeal be dismissed, that “[t]he allegations on discrimination, harassment and punitiveness [were] the subject matters of another appeal and they [would] be decided on in [another] case brought before the Appeals Board” by the complainant.
In adopting that approach, the Appeals Board committed an error of law. If those allegations had proved to be well founded, they would have substantiated the existence of flaws rendering the contested decision unlawful; hence the Appeals Board could not properly recommend that the aforementioned decision be confirmed without first having determined whether they were valid.
procedure before the tribunal; internal appeal; mistake of law; harassment
The impugned decision of 13 August 2014 is based on the opinion delivered by the Appeals Board, which the Director-General simply endorsed. That decision is hence tainted by the same error of law (for similar cases, see Judgments 2742, under 40, 2892, under 14, and 3490, under 18).
ILOAT Judgment(s): 2742, 2892, 3490
internal appeals body; report; mistake of law; final decision
It should be borne in mind that [...] an extension beyond the statutory retirement age, which is an exceptional measure over which the Director-General exercises broad discretion, may be granted only if, in the words of Staff Regulation 9.5, the latter “considers it to be in the interest of the Organization”.
Organization rules reference: Staff Regulation 9.5
retirement; age limit; discretion; extension beyond retirement age
Indeed, although differences in treatment with regard to extensions of appointment beyond the statutory retirement age may certainly be justified by the particular circumstances of individual cases, the Tribunal cannot but note that other staff of the Office benefited at that time from the rather liberal use that was being made of the discretion to grant extensions, which is in stark contrast to the rigorous examination to which the complainant’s request was subjected.
equal treatment; age limit; extension beyond retirement age