Judgment No. 4157
1. The WIPO Director General’s decision of 29 January 2016 is set aside to the extent that it changed the direct supervisor’s assessment relating to objective 5 and limited the amount of compensation awarded to the complainant to 2,000 Swiss francs.
2. The Organization shall pay the complainant moral damages as set out in consideration 9 of the judgment.
3. It shall also pay her 5,000 euros in costs.
4. All other claims are dismissed.
The complainant challenges the amount of compensation awarded for the moral injury she suffered because her evaluation for 2013 was irregular and contests the partial modification thereof.
complaint allowed; moral injury; decision quashed; performance evaluation
In the context of an appeal against the reviewing officer’s unfavourable evaluation, the Director General was not entitled to change the direct supervisor’s assessment relating to a point which was favourable to the complainant and which was not challenged by her, nor a fortiori to amend the evaluation report itself by replacing the supervisor’s assessment with his own, without indicating that the new assessment was not the one initially made.
With regard to damages, the complainant bears the burden of proof and she or he must provide evidence of the injury suffered, of the alleged unlawful act, and of the causal link between the unlawful act and the injury (see Judgments 3778, consideration 4, 2471, consideration 5, and 1942, consideration 6).
The mere fact that a decision was initially flawed does not suffice to warrant awarding damages for moral injury. In the present case, the flaw was corrected on the recommendation of the Appeal Board. To be entitled to moral damages, an official must show that she or he has suffered more severe injury than that which an improper decision ordinarily causes (see Judgment 1380, consideration 11).
ILOAT Judgment(s): 1380, 1942, 2471, 3778
moral injury; burden of proof
Even though the compensation awarded by the Director General was insufficient, the latter’s decision is not such as to cause additional moral injury in the complainant’s case.
moral injury; final decision
Reference must be made to the Tribunal’s consistent precedent that “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, Judgments 1990, under 7, 2194, under 6(a), 2313, under 5, or 3029, under 14)” (see Judgments 3787, under 3, and 3902, under 5).
ILOAT Judgment(s): 1990, 2194, 2313, 3029, 3787, 3902
equal treatment; unequal treatment
As regards costs relating to the internal appeal, [...] the Tribunal notes that there is no rule which obliges the Organization to defray legal costs incurred in the context of internal appeal proceedings. In these circumstances, it was open to the Director General to refuse to reimburse them (see Judgments 2996, consideration 23, and 221, consideration 7).
ILOAT Judgment(s): 221, 2996
internal appeal; costs
[T]he Tribunal considers that there are no grounds for awarding costs in respect of the internal appeal proceedings, since such costs may only be awarded under exceptional circumstances, which do not exist in the present case.
costs for internal appeal procedure
The amount of compensation must be the subject of a specific examination, which takes into account all relevant factors, such as the seriousness, nature and duration of the damage suffered and also whether or not the organization withdrew the irregular decision and rectified the irregularity.
In order to justify increasing the award of compensation, the complainant cites numerous irregularities committed by the reviewing officer, the violation of the adversarial principle owing to the absence of discussion prior to her evaluation, the formal flaw in the evaluation, which was not written in electronic form but handwritten, the lateness of the 2012 evaluation, the absence of dialogue, the clear desire to negate and denigrate her work, misuse of authority, and partiality against her.
The Appeal Board concluded that the shortcomings in the 2013 evaluation for the complainant were “obvious and numerous”. The Director General shared this view and removed the reviewing officer’s comments and rating. Consequently, the complainant’s arguments concerning the irregularities committed by the reviewing officer, as set out above, have become moot and there is no need to examine them. Furthermore, the cited irregularities are not, in the present case, such as to aggravate the moral injury suffered by the complainant.
compensation; claim moot