Judgment No. 4036
Decision
1. UNESCO shall pay the complainant 30,000 United States dollars by way of moral damages.
2. It shall pay the complainant 60,000 United States dollars by way of material damages.
3. It shall also pay the complainant 9,000 United States dollars in costs.
4. All other claims are dismissed.
Summary
The complainant contests UNESCO’s decisions to abolish his post and to terminate his appointment.
Judgment keywords
Keywords
complaint allowed; abolition of post; termination of employment
Consideration 4
Extract:
An issue that arises immediately is whether the complaints should be joined. The complainant contends they should, UNESCO contends they should not. In the present case, it is desirable that the two complaints be joined in order to render one judgment. If, in some respect, the abolition decision was tainted by illegality, then that may well have consequences concerning the legality of the termination decision.
Keywords
joinder
Considerations 7-10
Extract:
There are many judgments of the Tribunal concerning the obligations of an international organisation towards staff whose positions have been abolished as a result of a reorganization or restructuring. A recent one is Judgment 3908. [...]
[A]s noted in Judgment 3908, consideration 14, a document such as an Administrative Circular and what it might say about steps to be taken to redeploy staff cannot circumscribe exhaustively UNESCO’s obligations towards staff whose positions have been abolished.
The complainant was offered one post in the redeployment process [...], but he declined the offer. UNESCO relies on this offer as part of its argument that it took adequate steps to redeploy the complainant. The complainant expressed interest in two other positions, which had been listed on the HRM website and to which he could have been reassigned as part of the redeployment process set out in Administrative Circular AC/HR/28 and Memorandum DDG/2013/13. He was unsuccessful in securing appointment to those positions, as they were ultimately filled by officials whose positions also had been abolished. No criticism can be made of UNESCO in following this approach (see the observations of the Tribunal in consideration 16 of Judgment 3908 [...]).
[...] However, as discussed in Judgment 3908, considerations 14 to 16, an organisation’s obligation to find another position for a member of staff whose post has been abolished extends, at least in principle, to any vacant position within the organisation involving duties which the member of staff would be qualified and able to perform. In this context, UNESCO argues that the complainant should have, but failed to, challenge in separate proceedings his non-appointment to any, or all, of these four additional positions. However, for the reasons just given concerning the extent of the organisation’s obligation, he is able to challenge his non-appointment as part of a challenge to the termination of his employment arising from his non-redeployment within UNESCO.
Reference(s)
ILOAT Judgment(s): 3908
Keywords
abolition of post; reassignment
Considerations 11-12
Extract:
An obvious inference to be drawn from the fact that he applied is that he was interested in the position. Whether his interest was acute, moderate or even marginal was, for present purposes, beside the point. He was sufficiently interested to make the application and submit to interview. [...]
It is not the Tribunal’s role in a case such as the present to engage in the discretionary evaluation of whether an applicant for a post should be appointed to it. However, the evaluation of the complainant in the preceding commentary does not point to a lack of skills or qualifications that would necessarily preclude appointment. This evaluation was as if the complainant was being assessed in a competitive process and, for present purposes, without paying any regard to the fact that the complainant was then a member of staff whose post had been abolished and was facing the termination of his employment if another post within the Organization could not be found. This failure to pay regard to the complainant’s position manifests a material flaw in the redeployment process broadly analogous to the flaw identified in Judgment 3908.
Reference(s)
ILOAT Judgment(s): 3908
Keywords
reassignment
Consideration 15
Extract:
It is often the case in a challenge to a decision to abolish a post that the aggrieved staff member, in this case the complainant, will develop arguments, often at length, as to how the restructuring might have been done differently and without the consequence of their post being abolished. But whether it could have been done differently is usually, as it is in this case, beside the point. It is sufficient for the organisation to point to legitimate reasons for the action actually taken. UNESCO has done so in this case.
Keywords
abolition of post
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