Judgment No. 4599
1. The impugned decision is set aside to the extent stated in consideration 22 of this judgment.
2. WHO shall pay the complainant material damages in accordance with consideration 23 of this judgment.
3. WHO shall also pay the complainant moral damages in accordance with consideration 24 of this judgment.
4. It shall also pay the complainant 8,000 Swiss francs in costs.
5. All other claims are dismissed.
The complainant challenges the decisions to abolish her post, reassign her, terminate her contract including the decision to defer the date of her termination, and to reject her claims of retaliation.
complaint allowed; abolition of post; reassignment; termination of employment
The complainant argues that there was conflict of interest because the composition of the GBA was the same as the one that examined her previous appeal underlying her second complaint; hence, its members were influenced by their findings on that appeal, in particular the finding that her allegations of harassment were not supported by facts. However, the fact that some members of the GBA had sat in a prior appeal and arrived at conclusions adverse to the complainant did not prevent them from considering the appeal at issue in the instant case, as the complainant asserts.
conflict of interest; composition of the internal appeals body
[T]he case law has it that a decision concerning the restructuring of an international organization, which leads to the abolition of a post, may be taken at the discretion of its executive head and is subject to review only on limited grounds by the Tribunal. The Tribunal will not supplant an organisation’s view with its own. Nevertheless, any decision to abolish a post must be based on objective grounds and its purpose may never be to remove a member of staff regarded as unwanted. Disguising such purposes as a restructuring measure would constitute abuse of authority (see, for example, Judgment 4353, under 6). It has also been stated that in order to achieve greater efficiency or to make budgetary savings international organisations may undertake restructuring entailing the redefinition of posts and staff reductions. However, each and every individual decision adopted in the context of such restructuring must respect all the pertinent legal rules, and, in particular the fundamental rights of the staff concerned (see, for example, Judgment 4353, under 7).
Following the decision to abolish a post, there must be proper institutional support mechanisms in place to assist the staff member concerned in finding a new assignment (see, for example, Judgment 4353, under 7).
ILOAT Judgment(s): 4353
organisation's duties; abolition of post; reorganisation
Regarding the reassignment of staff, the Tribunal has recognized the wide discretion of an executive head of an international organization to reassign staff in the interest of the organization. The discretion is enshrined in Article 1.2 of the Staff Regulations which states that all staff members are subject to the authority of the executive head of the organization and to assignment by her or him to any of the activities or offices of the organization. The Tribunal has therefore stated that it may interfere with a decision to reassign a staff member only on the limited grounds that the decision was taken ultra vires or shows a formal or procedural flaw or mistake of fact or law, if some material fact was overlooked, if there was misuse of authority or an obviously wrong inference was drawn from the evidence. The Tribunal has however emphasised that the organization must show due regard, in both form and substance, for the dignity of the official concerned, particularly by providing her or him with work of the same level of responsibilities as she or he performed in the previous post and matching her or his qualifications (Judgment 4240, under 5).
ILOAT Judgment(s): 4240
transfer; reassignment; judicial review; discretion