Judgment No. 4341
1. The impugned decision of the President of IFAD of 11 September 2018 is set aside.
2. The matter is remitted to IFAD for the purpose identified in consideration 7 of the judgment.
3. IFAD shall pay the complainant 5,000 United States dollars as moral damages.
4. IFAD shall also pay the complainant 800 United States dollars as costs.
5. All other claims are dismissed.
The complainant challenges the decision not to shortlist him for the position of General Counsel.
complaint allowed; decision quashed; case sent back to organisation; selection procedure
The complainant argues that the recommendation of the Board was based on grossly inadequate reasoning, referring to Judgment 3995, consideration 4. The Tribunal accepts this is correct. It is to be recalled that the Board said it would not consider the complainant’s case on the merits because he had participated willingly and without objection in the selection process along the way. This led the Board to conclude, for no discernible reason, the complainant did not have a legally protected interest in the matter. The case law of the Tribunal repeatedly establishes that a staff member who has been unsuccessful in a competition has the legal right to challenge the lawfulness of the competition (see Judgments 1832, consideration 3(b)(2), and 3449, consideration 2) and internal appeals bodies have a corresponding duty to consider the challenge (see, for example, Judgment 3590, consideration 2). [...]
Moreover the fact that the complainant did not raise issues or objections during the process is of no legal consequence. Steps were taken in the selection process before the decision was made not to shortlist the complainant and ultimately the decision to appoint another person. The complainant could not directly or immediately challenge those steps legally (see, for example, Judgment 3876, consideration 5). Moreover it could scarcely be expected that the complainant should run the risk of compromising his candidature by complaining about the conduct of those engaged in the selection process or otherwise complaining about the process at the time his application was being assessed.
The approach of the Board involved an error of law and its effective adoption by the President is tainted by the same error (see Judgment 3490, consideration 18). IFAD defends the President’s approach by saying firstly, he had no power to refer the matter back to the Board and secondly and in any event the President “appraised the [Board]’s Report and recommendations in light of all the documentation he had at his disposal in relation to the [c]omplainant’s appeal”. If the President did not have power to refer the matter back to the Board, he had an obligation to motivate his decision to dismiss the appeal in the face of no motivation of substance from the Board itself. The President did not do so.
ILOAT Judgment(s): 1832, 3449, 3490, 3590, 3876, 3995
cause of action; internal appeals body; selection procedure; motivation
As the complainant points out in his pleas, citing Judgment 3424, internal appeal bodies play a fundamental role in the resolution of disputes between organisations and their staff. It can be expected the members of the body have extensive knowledge of the functioning of the organisation and can bring that knowledge to bear in its consideration of the dispute.
ILOAT Judgment(s): 3424
internal appeals body
The complainant’s right of appeal has been materially compromised by the course adopted by the Board and the President. He is entitled to moral damages in the sum of 5,000 United States dollars. IFAD argues this claim for moral damages is irreceivable, as internal means of redress have not been exhausted. But it is a claim arising immediately and directly from the internal appeal process itself and is receivable in the Tribunal.
The complainant sought his costs for his internal appeal but the circumstances are not exceptional and the request should be refused (see Judgments 4157, consideration 14, and 4217, consideration 12).
ILOAT Judgment(s): 4157, 4217