Judgment No. 4589
The complaint is dismissed.
The complainant contests the recruitment process for the position of Staff Council Coordinator and her non-selection for that position.
selection procedure; complaint dismissed
As a precursor to determining the merits of this complaint, one procedural matter concerning the complainantís request for disclosure will be addressed. This will be done by reference to the Tribunalís case law stated, for example, in consideration 5 of Judgment 4023 according to which, a staff member must, as a general rule, have access to all evidence on which the authority bases or intends to base its decision against her or him, and, under normal circumstances, such evidence cannot be withheld on grounds of confidentiality. It follows that a decision cannot be based on a material document that has been withheld from the concerned staff member. The Tribunal has consistently affirmed the confidentiality of the records of the discussions regarding the merits of the applicants for a post. However, this does not extend to the reports regarding the results of the selection process with appropriate redactions to ensure the confidentiality of third parties.
The complainant repeats her request, made in the internal appeal procedure, that the Global Fund be ordered to disclose a redacted copy of the full competition file of the recruitment process. In its [Ö] report to the Executive Director, referring to the Tribunalís case law, the Appeal Board stated that it had rejected the complainantís request for disclosure. This was on the basis that the complainant had been given access to the evidence on which the contested decision was based, as the Global Fund had already provided her with a redacted copy of the Selection Panelís report, which included its recommendations. As the Appeal Board concluded, correctly by reference to consideration 11 of Judgment 3032, the full disclosure to the complainant of the competition file of the sixty-six candidates who had applied for the contested post would breach the right of confidentiality of third parties. The complainantís request for disclosure is rejected.
ILOAT Judgment(s): 3032, 4023
disclosure of evidence
Consistent case law, stated for example in Judgments 4001, consideration 4, and 4467, consideration 2, has it that a person who challenges the selection of a candidate for a post must demonstrate that there was a serious defect in the selection process. As the selection of candidates is necessarily based on merit and requires a high degree of judgement on the part of those involved in the selection process, a complainant must demonstrate that there was a serious defect in the selection process which impacted on the consideration and assessment of her or his candidature. It is not enough simply to assert that one is better qualified than the selected candidate. However, when an organisation conducts a competition to fill a post the process must comply with the relevant rules and the Tribunalís case law. When an organisation wants to fill a post by competition it must comply with the material rules and the general precepts of the case law, as the purpose of competition is to let everyone who wants a post compete for it equally. The Tribunalís case law therefore demands scrupulous compliance with the rules announced beforehand.
ILOAT Judgment(s): 4001, 4467
[T]he complainant submits, by reference to consideration 12 of Judgment 3125, that the Appeal Board committed an error of law by unlawfully restricting its competence while examining her internal appeal. The Tribunal stated, in the referenced consideration, that the internal appeal body involved in that case was wrong to define its own competence by reference to the case law which defines the Tribunalís own power of review of discretionary decisions. In consideration 14 of Judgment 3125, the Tribunal set aside the selection process solely because the internal appeal body had so restricted its competence. That however is not the end of the matter. The Tribunalís case law also has it that where an organizationís rules restrict an appeal bodyís power to review a discretionary decision, the rules, rather than the foregoing principle, apply (see, for example, Judgment 3077, consideration 3).
Importantly for the purpose of this case, however, the case law further has it that, notwithstanding that an Appeal Board wrongfully defines its competence to review a selection decision by reference to the Tribunalís limited power of review, the report of the Board would not be vitiated if it is found that it in fact considered the submissions and materials the parties provided (see, for example, Judgment 4010, consideration 7). Accordingly, in consideration 2 of Judgment 3590, the Tribunal stated that by noting that the candidates had been treated equally, the Appeal Board recognized that the appointing authority enjoyed wide discretion to appoint the person whom it considered to be the most qualified for the post advertised from a shortlist of candidates, all of whom met the requirements specified by the vacancy notice. The Tribunal also stated that this self-restraint on the part of the appeal body is completely justified to the extent that, when conducted correctly, a competition and selection procedure calls for a complex assessment of multiple criteria that relate as much to the candidatesí personalities and qualities as to the organizationís particular interests. It further stated that without compromising the objective assessment of these criteria, the appeal body cannot be vested in every circumstance with the same power of review that must be granted to the bodies responsible for selecting candidates, but that this does not relieve the appeal body of its duty to examine the competition file closely and to provide plausible reasons for its recommendation within the limits of its power of review.
In the present case, the Appeal Board examined the competition file, although it did not disclose it to the complainant.
ILOAT Judgment(s): 3077, 3125, 3590, 4010
internal appeals body; competence
Under the Tribunalís case law, the absence of a desired qualification does not disqualify a candidate from being selected to fill a post (see, for example, Judgment 4467, consideration 13).
ILOAT Judgment(s): 4467
qualifications; selection procedure