Judgment No. 4480
1. The decision of the Director-General of the International Labour Office of 4 December 2018 and his previous decision of 9 January 2017 are set aside.
2. The case is remitted to the ILO so that it may take the action stated under consideration 17 of the judgment.
3. The Organization shall pay the complainant moral damages in the amount of 5,000 Swiss francs.
4. It shall also pay her costs in the amount of 1,000 Swiss francs.
5. All other claims are dismissed.
The complainant challenges the decision not to grant her a personal promotion in the 2015 exercise.
complaint allowed; case sent back to organisation; promotion; personal promotion
As the Tribunal has consistently held (see, for example, Judgments 4145, consideration 4, and 4701, consideration 4), the principles of interpretation of statutory texts such as the Staff Regulations are well settled. The primary rule is that words are to be given their obvious and ordinary meaning.
ILOAT Judgment(s): 4145, 4701
interpretation of rules
[T]he Tribunal has no jurisdiction to [...] order [a promotion] (see, for example, Judgment 4377, consideration 2).
ILOAT Judgment(s): 4377
competence of tribunal; order a promotion
The flaws that warrant the setting aside of the impugned decision and the decision of 9 January 2017 denied the complainant her right to an examination of her file in accordance with the applicable provisions. The Tribunal considers that this injury will be fairly redressed by awarding the complainant compensation in the amount of 5,000 Swiss francs.
[R]egarding the language used in the parties’ respective pleadings, in which both the complainant and her counsel, on the one hand, and the ILO and its counsel, on the other hand, criticise each other and invite the Tribunal to sanction each other’s conduct, the Tribunal finds that, although each party has asserted its interests and defended its views in a manner that is at times extremely robust, the pleadings are not such as to warrant the imposition of a sanction or an award of damages or even exemplary damages. The Tribunal considers that, although their unnecessarily argumentative tone is regrettable, the parties’ pleadings do not exceed the bounds of the freedom of expression that they must be accorded during legal proceedings.
writing style of submissions
It is true that, in the same judgment, in consideration 4, the Tribunal reiterated that, under its case law, “an organisation enjoys wide discretion with regard to staff promotion” and that “[f]or this reason, such decisions are subject to only limited review”. However, as is made clear in Judgment 3322, consideration 4, such a decision may nevertheless “be quashed [...] if it was taken without authority, or in breach of a rule of form or of procedure, or if it rested on an error of fact or of law, or if some essential fact was overlooked, or if clearly mistaken conclusions were drawn from the evidence, or if there was abuse of authority (see, for example, Judgments 1815, under 3, 2668, under 11, or 3084, under 13)”.
ILOAT Judgment(s): 1815, 2668, 3084, 3322, 4252
personal promotion; discretion