Judgment No. 3940
1. The Director-General’s decisions of 28 August 2015, 30 April 2014 and 7 July 2014 are set aside.
2. UNESCO shall pay the complainant compensation under all heads in the amount of 50,000 euros.
3. UNESCO shall also pay the complainant costs in the amount of 1,000 euros.
4. All other claims are dismissed.
The complainant challenges the decision to abolish his post.
complaint allowed; decision quashed; fixed-term; abolition of post; outsourcing
The Tribunal has consistently held that a distinction must be made between a decision to abolish a post and a decision to terminate an appointment (see, for example, Judgment 3755, under 3).
ILOAT Judgment(s): 3755
decision; abolition of post; termination of employment
The Tribunal’s case law concerning the abolition of a post in the context of a restructuring process was succinctly stated in Judgment 2830, under 6: “(a) An international organisation may find that it has to reorganise some or all of its departments or units. Reorganisation measures may naturally entail the abolition of posts, the creation of new posts or the redeployment of staff (see Judgments 269, 1614, 2510 and 2742). The steps to be taken in this respect are a matter for the Organization’s discretion and are subject to only limited review by the Tribunal (see Judgments 1131, under 5, and 2510, under 10).
(b) The Tribunal has consistently held that ‘there must be objective grounds’ for the abolition of any post. It must not serve as a pretext for removing staff regarded as unwanted, since this would constitute an abuse of authority (see Judgment 1231, under 26, and the case law cited therein)’.”
ILOAT Judgment(s): 2830
abolition of post; reorganisation
The Tribunal has consistently held that the outsourcing of certain services, that is to say the use by an organisation of external contractors to perform tasks that it feels unable to assign to officials hired under its staff regulations, forms part of the general employment policy that an organisation is free to pursue in accordance with its general interests. The Tribunal is not competent to review the advisability or merits of the adoption of such a measure in a specific field of activity (see Judgments 3275, under 8, 3225, under 6, 3041, under 6, 2972, under 7, 2907, under 13, 2510, under 10, 2156, under 8, and 1131, under 5).
ILOAT Judgment(s): 1131, 2156, 2510, 2907, 2972, 3041, 3225, 3275
competence of tribunal; organisation's interest; outsourcing
In Judgment 3376 [...] the Tribunal recalled that an organisation “that resorts to subcontractors, be they companies or individuals, must ensure that the contract it signs with them will not have an adverse impact on the situation of officials who are subject to the staff regulations and will not unjustifiably infringe the rights they enjoy under those regulations. The risk of such an infringement is particularly great in the case of long-term contractual outsourcing and in cases where the tasks involved are still partly performed concurrently by regular staff (see Judgment 2919 passim). In such cases the duty of care requires the organisation to provide the staff concerned with adequate information concerning the outsourcing procedures and their possible impact on their professional situation and to prevent any possible adverse impact thereon (see Judgments 2519, under 10, 1756, under 10(b), and 1780, under 6(a)).”
The lack of transparency noted by the Appeals Board is corroborated by the evidence on file, which shows that although the complainant contacted his supervisors on numerous occasions, they did not provide him with sufficient information as to the reasons for the outsourcing of the tasks that he performed and the way in which it would be achieved. Moreover, the evidence does not show that the Organization did its utmost to minimise the negative impact of the use of service contracts on the complainant’s status.
ILOAT Judgment(s): 1756, 1780, 2519, 2919, 3376
duty to inform; duty of care; outsourcing