Judgment No. 4173
1. UNESCO shall pay the complainant moral damages in the amount of 10,000 United States dollars.
2. UNESCO shall pay the complainant costs in the amount of 3,000 United States dollars.
3. All other claims are dismissed.
The complainant challenges the decision to assign her to another duty station.
complaint allowed; assignment
In Judgment 3037, consideration 11, the Tribunal recalled “the principle that the lawfulness of a measure must be appraised as at the date of its adoption. In consequence thereof all subsequent facts are irrelevant (see Judgment 2365, under 4(c)).”
ILOAT Judgment(s): 2365, 3037
lawfulness of a measure
As stated in Judgment 3531, consideration 4, the Tribunal has “consistently held that international organisations have a duty to ensure that internal appeals are conducted with due diligence and with due regard to the duty of care owed to staff members (see, in particular, Judgment 2522)”. It is recognized that the time an appeal might reasonably take will usually depend on the specific circumstances of a given case. At the same time, as the Tribunal stated in Judgment 3688, consideration 6, citing Judgment 2904, consideration 15:
“According to well-established case law, ‘[s]ince compliance with internal appeals procedures is a condition precedent to access to the Tribunal, an organisation has a positive obligation to see to it that such procedures move forward with reasonable speed’ (see Judgment 2197, under 33).”
ILOAT Judgment(s): 2197, 2522, 2904, 3531, 3688
internal appeal; duty of care
In this case, UNESCO’s actions in relation to the internal appeal process constitute a breach of its duty to ensure that the internal appeal was conducted with due diligence and its duty of care owed to the complainant. Additionally, not only did it breach its obligation to ensure that the appeal procedure moved forward with reasonable speed, it effectively precluded the complainant from exercising her right of appeal. In these circumstances, the Tribunal concludes that the complainant exhausted the available means of redress and her complaint is receivable.
receivability of the complaint; internal remedies exhausted
Staff Regulation 1.2 relevantly provides that “[s]taff members are subject to the authority of the Director-General, and to assignment by him or her, with due regard to their qualifications and experience, to any post in the Organization”. Thus, upon accepting an appointment the staff member agrees to serve in any post to which she or he is assigned. In the present case, the Director-General in the exercise of her statutory authority assigned the complainant to the duty station to which her post was relocated. As a staff member is administratively attached to her or his post, the complainant was obliged to comply with the assignment decision. It must also be observed that one of the consequences of a refusal to comply with an assignment decision, is that the concerned staff member no longer has a post and that may well lead to the termination of the staff member’s appointment.
Organization rules reference: Staff Regulation 1.2