Judgment No. 4229
1. The impugned decision of 14 November 2018 is set aside to the extent that it denied reinstatement.
2. The FAO shall pay the complainant moral damages in the amount of 5,000 euros.
3. All other claims are dismissed.
The complainant, a former staff member of the World Food Programme, challenges the decision to maintain the decision not to renew his contract, and to award him material and moral damages instead of reinstatement.
complaint allowed; decision quashed; fixed-term; non-renewal of contract
In the Tribunal’s view, it was mistaken for the impugned decision to rely on the fact that the complainant’s 2011 and 2012 PACE appraisal reports gave him an “unsatisfactory” overall rating, and were not revised to satisfactory, as well as concerns that were stated in the complainant’s probationary appraisal (which actually gave a satisfactory rating), as bases for finding that his reinstatement was not warranted. Accordingly, the impugned decision will be set aside to the extent that it denied reinstatement. However, inasmuch as the complainant held a fixed-term appointment that expired on 3 June 2013 rather than a continuing appointment, and given the time that has passed, the Tribunal considers that it is not appropriate to order his reinstatement (see, for example, Judgment 4063, consideration 11).
ILOAT Judgment(s): 4063
performance report; reinstatement; fixed-term; non-renewal of contract
Notwithstanding the setting aside of the impugned decision, the Tribunal considers that the award of 70,000 euros, which the Organization paid to the complainant for the lost opportunity to be considered for renewal, was reasonable. Accordingly, it will be unnecessary to award him any further sum in this regard. Although in the impugned decision the Director-General purported to “set aside” the decision not to renew the complainant’s fixed-term contract, the fact remains that the complainant was separated from service without a valid reason and was not reinstated. It is perhaps this, above all, that justifies the significant amount of damages awarded to him by the Director-General. There is no other basis for awarding further damages for the invalid 2012 PACE appraisal report and the unlawful decision not to renew the complainant’s appointment.
performance report; fixed-term; non-renewal of contract; formal flaw; procedural flaw; loss of opportunity; material damages
The complainant claims moral damages for excessive delay. It is well settled in the case law that internal appeals must be conducted with due diligence and in a manner consistent with the duty of care an international organization owes to its staff members. It is also settled that the amount of compensation for unreasonable delay will ordinarily be influenced by at least two considerations. One is the length of the delay and the other is the effect of the delay. These considerations are interrelated as lengthy delay may have a greater effect. The effect of the delay will usually depend on, amongst other things, the subject matter of the appeal (see, for example, Judgment 4100, consideration 7).
[...] The relevant period of delay in the internal appeal proceedings was about three years and eight months. This was too long. It was not in keeping with the Organization’s duty of care to the complainant, which required it to ensure that the internal appeal was conducted with due diligence.
Regarding the impact of that delay, the complainant states that it caused him injury that was even more serious because he was unfairly separated from WFP in June 2013 when the appeal proceedings were ongoing, although he had requested that his appointment be extended until those proceedings were finalized. He states that he has “been mistreated, discriminated [against] and denied [...] opportunities to join other UN Organizations” until the final decision was given.The FAO submits that the complainant is mistaken because Manual paragraph 331.3.25 states that the filing of an appeal does not have the effect of suspending the implementation of an administrative decision which is the subject of the appeal. While the Tribunal finds no ground on which to hold that the complainant was discriminated against on account of the delay, the FAO’s submission does not mean that the length of the delay in the internal appeal proceedings did not cause him injury, albeit that he might not have stated it forensically or with precision. He was obviously anxious over his employment situation but did not pursue other employment options as diligently as he might have done with the hope that he may have been reinstated. The Tribunal holds that this consideration in light of the length of the delay entitles the complainant to moral damages, for which he will be awarded 5,000 euros.
ILOAT Judgment(s): 4100
moral injury; delay in internal procedure
The complainant seeks 5,000 euros in costs. The FAO opposes this request on the ground that as the complainant is represented by the Legal Officer of the Association of Professional Staff whose function is funded by the FAO, an award of costs would amount to double payment of legal fees. As the complainant has not disputed this, the Tribunal will award no costs.
costs; staff union