Judgment No. 4027
1. The decision of the Secretary-General of 3 February 2015 is set aside.
2. The ITU shall pay the complainant moral damages in the amount of 5,000 euros.
3. It shall also pay him 2,000 euros in costs.
4. All other claims are dismissed.
The complainant challenges the lawfulness and outcome of several competitions in which he participated.
complaint allowed; decision quashed; selection procedure
The Tribunal recalls that the internal appeal body’s consideration of the appeal is vitally important and, in particular, enables the official to decide whether or not to bring further proceedings, notable before the Tribunal. Thus, the Tribunal found in Judgment 3424, under 11, that, “apart from the fact that the review of a disputed decision in an internal appeal procedure may well suffice to resolve a dispute, one of the main justifications for the mandatory nature of such a procedure is to enable the Tribunal, in the event that a complaint is ultimately lodged, to have before it the findings of fact, items of information or assessment resulting from the deliberations of appeal bodies, especially those whose membership includes representatives of both staff and management, as is often the case (see, for example, Judgments 1141, under 17, or 2811, under 11). [...] [T]he [a]ppeal body plays a fundamental role in the resolution of disputes, owing to the guarantees of objectivity derived from its composition, its extensive knowledge of the functioning of the organisation and the broad investigative powers granted to it. By conducting hearings and investigative measures, it gathers the evidence and testimonies that are necessary to establish the facts, as well as the data needed for an informed assessment thereof.”
In this case, the Appeal Board’s report, consisting of five essential points, does not provide full details of the disputed competition procedures, since the Board merely presents its findings without listing the complainant’s arguments or providing a preliminary discussion allowing its position to be understood. This very succinct report does not enable the Tribunal to ascertain whether the Board considered the disputed competition procedures in sufficient depth. Since the plea of a breach of the right to an effective internal appeal is well founded, the impugned decision must be set aside for that reason, without there being any need to rule on the complainant’s other pleas concerning the lawfulness of the internal appeal proceedings.
ILOAT Judgment(s): 1141, 2811, 3424
internal appeals body; internal appeal; right of appeal; appraisal of evidence
At this stage of the proceedings, the Tribunal would ordinarily remit the case to the organisation for the Appeal Board to re-examine the complainant’s appeal. However, having regard in particular to the time that has elapsed since the events and to the importance of a final determination as to the lawfulness of the disputed competitions, the Tribunal will not do so in this case but will itself examine the complainant’s pleas in respect of the contested decisions concerning these competitions.
case sent back to organisation
The Tribunal recalls its case law according to which, “the principle of equal treatment requires, on the one hand, that officials in identical or similar situations be subject to the same rules and, on the other, that officials in dissimilar situations be governed by different rules defined so as to take account of this dissimilarity” (see, for example, Judgment 3900, under 12). In light of this case law, the recommended candidate, who has already been preselected by the supervisors in accordance with paragraph 21 of the Rules of Procedure of the Appointment and Promotion Board, is not in the same situation as the other short-listed candidates. It is natural that this candidate’s curriculum vitae should be submitted to the appointing authority to elucidate the proposal made in her or his regard. The plea of a breach of the principle of equal treatment is therefore unfounded.
ILOAT Judgment(s): 3900