Judgment No. 4451
The complaint is dismissed.
The complainant impugns the decision concerning her management-driven transfer.
transfer; complaint dismissed
[T]he complainant appears to complain that the texts governing the conditions of service of IFAD officials, or “at least the main texts”, namely the Staff Rules and the Human Resources Implementing Procedures, are not available to those officials in the Tribunal’s two working languages and that they were sent to the Tribunal in English alone.
The Tribunal observes that under Article 8(2)(b) of the Rules of the Tribunal, a defendant organisation before the Tribunal is only required to provide a translation into the language chosen for the proceedings by a complainant for “any text which is not in English or French”. Since the documents at issue are in English, IFAD cannot be required to produce a French version (see Judgment 4063, consideration 3).
The Tribunal further notes that the complainant was recruited by IFAD as a bilingual Italian/English clerk-typist, that English was used by both parties during the administrative procedure of management-driven transfer and that the complainant herself lodged her internal appeal with the Joint Appeals Board using English. The Tribunal therefore fails to see how the submission of statutory texts in English could have actually been detrimental to the complainant.
ILOAT Judgment(s): 4063
In its reply, IFAD requests the Tribunal to disregard a letter sent by the members of the Joint Appeals Board to the President of IFAD on 5 May 2017.
The Tribunal notes that, contrary to what IFAD contends, the letter in question, which made no mention of the confidential nature of its contents, was not confidential and there is nothing to prove that the complainant came to possess it improperly. There is therefore no reason for the Tribunal to disregard this item of evidence.
confidential evidence; confidentiality
In respect of its consideration of the various pleas, the Tribunal wishes to begin by pointing out that, with regard to decisions to transfer, appoint, reassign or promote an international civil servant or to refuse to select her or him for a vacant post, it considers, in accordance with established case law, that such decisions lie within the discretion of the competent authority of the organisation concerned and are subject to only limited review by the Tribunal. Thus, such a decision may be set aside only if it was taken without authority or in breach of a rule of form or of 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. Moreover, the Tribunal will be especially wary in reviewing a transfer since it may not replace the employer’s rating of the official with its own (see, inter alia, Judgments 1556, consideration 5, and 4408, consideration 2).
ILOAT Judgment(s): 1556, 4408
transfer; discretion; role of the tribunal
The Tribunal considers that a transfer decision satisfies the requirements laid down in its case law concerning the statement of reasons when, in particular, the staff member was given explanations enabling her or him to comment on the new duties in detail and in full knowledge of the facts before the decision was taken (see Judgment 3662, consideration 5, and the case law cited therein). The Tribunal considers that, just as the requisite statement of reasons may be contained in the notification informing the staff member of the decision or any other document, the reasons may also be provided in prior proceedings, or orally (see, inter alia, Judgments 1590, consideration 7, 1757, consideration 5, and 4397, consideration 15), or may even be conveyed in response to a subsequent challenge (see Judgments 1590, consideration 7, and 3316, consideration 7).
ILOAT Judgment(s): 1590, 1757, 3316, 3662, 4397
[T]he Tribunal points out that bad faith and bias may not be presumed and the burden of proof is on the party that pleads it (see Judgments 4067, consideration 11, and 4408, consideration 22).
ILOAT Judgment(s): 4067, 4408
burden of proof; bad faith