Judgment No. 4412
1. The impugned decision, dated 21 September 2018, is set aside to the extent stated in considerations 5 and 17 of this judgment.
2. The FAO shall pay the complainant 20,000 euros in material damages.
3. The FAO shall pay the complainant 20,000 euros in moral damages.
4. The FAO shall also pay the complainant costs in the amount of 3,000 euros.
5. All other claims are dismissed.
The complainant challenges the decisions not to renew her short-term appointment beyond 31 March 2016 and not to select her for a G-3 position advertised through a vacancy announcement.
complaint allowed; decision quashed; short-term; non-renewal of contract; selection procedure
The Tribunal has consistently held that the appointment by an international organisation of a candidate to a position is a decision that lies within the discretion of its executive head. It is subject only to limited review and may be set aside only if it was taken without authority, or in breach of a rule of form or procedure, or if it was based on a mistake of fact or of law, or if some material fact was overlooked, or if there was abuse of authority, or if a clearly wrong conclusion was drawn from the evidence. This formulation is intended to highlight the need for a complainant to demonstrate that there was a serious defect in the selection process which impacted on the consideration and assessment of her or his candidature (see, for example, Judgment 4023, consideration 2).
ILOAT Judgment(s): 4023
appointment; judicial review; discretion; selection procedure
The Tribunal has consistently stated, for example in Judgment 3652, consideration 7, that anyone who applies for a post to be filled by some process of selection is entitled to have her or his application considered in good faith and in keeping with the basic rules of fair and open competition.
ILOAT Judgment(s): 3652
good faith; selection procedure
The Tribunal relevantly restated in Judgment 3586, consideration 16, that a staff member must, as a general rule, have access to all evidence on which an authority bases or intends to base its decision against her or him, and that, under normal circumstances, such evidence cannot be withheld on grounds of confidentiality, unless there is some special case in which a higher interest stands in the way of the disclosure of certain documents. Such disclosure may not be refused merely in order to strengthen the position of the Administration or one of its officers. Additionally, the Tribunal reiterated, in consideration 17 of that judgment, its consistent case law that the principle of equality of arms must be observed by ensuring that all parties in a case are provided with all the materials an adjudicating body uses in an internal appeal and that the failure to do so constitutes a breach of due process.
ILOAT Judgment(s): 3586
evidence; due process; motivation; confidentiality
The FAO’s failure to provide the complainant with a copy of the selection report, which it disclosed to the Appeals Committee, violated the adversarial principle and the principle of equality of arms, impeded her right of appeal and inhibited her ability to fully argue her case before the Appeals Committee in full knowledge of all facts of the case. It thereby tainted the internal appeal procedure, rather than the selection process as the complainant seems to suggest. This procedural irregularity is therefore not a basis for cancelling the selection process as the complainant requests. However, the impugned decision will be set aside to the extent that it rejected the Appeals Committee’s recommendation to immediately disclose a redacted copy of the selection report to the complainant and to award her adequate moral damages for the breach of procedural fairness (due process).
moral injury; disclosure of evidence; due process; selection procedure