Judgment No. 4238
Decision
The complaint is dismissed.
Summary
The complainant challenges the decision not to reclassify his post.
Judgment keywords
Keywords
reclassification; complaint dismissed
Consideration 5
Extract:
The Tribunal’s case law states that allegations of discrimination and unequal treatment can lead to redress on condition that they are based on precise and proven facts which establish that discrimination has occurred in the subject case (see Judgment 4067, consideration 10).
Reference(s)
ILOAT Judgment(s): 4067
Keywords
equal treatment; discrimination
Consideration 5
Extract:
[The Tribunal's case law] states that an allegation of harassment must be borne out by specific facts, the burden of proof being on the person who pleads it (see, for example, Judgment 4034, consideration 16).
Reference(s)
ILOAT Judgment(s): 4034
Keywords
harassment
Consideration 5
Extract:
The Tribunal [...] stated, in Judgment 3748, consideration 6, for example, that the complainant must establish that an action or conduct complained of was retaliatory, although it can be accepted that evidence of personal prejudice is often concealed and such prejudice can be inferred from surrounding circumstances.
Reference(s)
ILOAT Judgment(s): 3748
Keywords
retaliation
Consideration 5
Extract:
[T]he case law states that fraud depends on an intention to obtain financial advantage by deception (see Judgment 3402, consideration 9).
Reference(s)
ILOAT Judgment(s): 3402
Keywords
fraud
Consideration 7
Extract:
The applicable regulatory provisions with regard to the complainant’s first and second grounds will be referred to as necessary in this judgment. It suffices at this juncture to recall the basic guiding principles from the case law. The following was stated in Judgment 4000, considerations 7, 8 and 9:
“7. In Judgment 3589, in which the reclassification of a post was also challenged, the Tribunal stated the following, in consideration 4:
‘It is well established that the grounds for reviewing the classification of a post are limited and ordinarily a classification decision would only be set aside if it was taken without authority, had been made in breach of the rules of form or procedure, was based on an error of fact or law, was made having overlooked an essential fact, was tainted with abuse of authority or if a truly mistaken conclusion had been drawn from the facts (see, for example, Judgments 1647, consideration 7, and 1067, consideration 2). This is because the classification of posts involves the exercise of value judgements as to the nature and extent of the duties and responsibilities of the posts and it is not the Tribunal’s role to undertake this process of evaluation (see, for example, Judgment 3294, consideration 8). The grading of posts is a matter within the discretion of the executive head of the organisation (or the person acting on her or his behalf) (see, for example, Judgment 3082, consideration 20).’
8. As to the main factors that are to be taken into account in a reclassification process, the Tribunal has relevantly stated as follows, in Judgment 3764, consideration 6:
‘It is for the competent body and, ultimately, the Director-General to determine each staff member’s grade. Several criteria are used in this exercise. Thus, when a staff member’s duties attach to various grades, only the main ones are taken into account. Moreover, the classification body does not rely solely on the text of the Staff Regulations and Staff Rules and the job description but also considers the abilities and degree of responsibility required by each. In all cases grading a post requires detailed knowledge of the conditions in which the incumbent works.’
9. The classification of a post involves an evaluation of the nature and extent of the duties and responsibilities of the post based upon the job description. It is not concerned with the merits of the performance of the incumbent (see, for example, Judgment 591, under 2).
[...]”
Reference(s)
ILOAT Judgment(s): 591, 1067, 1647, 3082, 3294, 3589, 3764, 4000
Keywords
post classification
Consideration 10
Extract:
The complainant [...] contends that the GBA failed to consider the excessive delay in processing both reclassification requests (over 8 months for the first reclassification exercise and over 15 months for the second) just for him “to hear a pre-intended negative outcome”. The complainant raised what he refers to as the “Torturous Delays in Processing of Reclassification of [his] Position” in his appeal to the GBA dated 21 March 2017. The GBA did not address the issue of delay. In all of the circumstances, particularly given the two reclassification exercises, the delay was neither unreasonable nor excessive. The plea therefore fails.
Keywords
delay
Consideration 15
Extract:
The complainant contends that the GBA ignored his reservation concerning one of its members whom he suggested may have had a conflict of interest. According to the Tribunal’s case law, it is a general rule of law that a person called upon to take a decision affecting the rights or duties of other persons subject to her or his jurisdiction must withdraw in cases in which her or his impartiality may be open to question on reasonable grounds (see Judgment 3958, consideration 11).
Reference(s)
ILOAT Judgment(s): 3958
Keywords
conflict of interest
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