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Judgment No. 4609

Decision

1. The decision of the Director-General of UNESCO of 12 February 2020 and the decisions of 18 February 2013 and 1 March 2013 are set aside.
2. UNESCO shall pay the complainant damages of 15,000 euros for injury under all heads.
3. The Organization shall also pay the complainant 1,000 euros in costs.
4. All other claims are dismissed.

Summary

The complainant impugns the new decision taken by UNESCO pursuant to Judgment 3936 in the context of her appeal against the decision to transfer her to Paris.

Judgment keywords

Keywords

complaint allowed; transfer

Consideration 4

Extract:

It is well established in the case law of the Tribunal that a decision to transfer an employee of an international organisation, which, as with any appointment decision, lies within the discretion of the executive head of the organisation concerned, is, for that reason, subject to only limited review. Therefore, such a decision may be set aside only if it was taken ultra vires, if it shows formal or procedural flaws or a mistake of fact or law, if some material fact was overlooked, if there was abuse of authority or if a clearly wrong conclusion was drawn from the evidence (see, for example, Judgments 4451, consideration 6, 3488, consideration 3, 2635, consideration 5, 1556, consideration 5, and 883, consideration 5).

Reference(s)

ILOAT Judgment(s): 883, 1556, 2635, 3488, 4451

Keywords

transfer; discretion; role of the tribunal

Consideration 5

Extract:

The Tribunal notes [...] that, in this particular case, UNESCO was obliged to end the complainantís assignment as Head of the Kinshasa Office following the birth of her child. Non-family duty stations, which are determined for all organisations in the United Nations system by the International Civil Service Commission on the basis of recommendations from the United Nationsí Department of Safety and Security, and a list of which appears, in the case of UNESCO, in Annex 4 C to the Human Resources Manual, are places considered unsuitable for the assignment of staff members who are accompanied by their family due to the security situation in the States where they are located. Since Kinshasa was, at the material time, classed as a duty station in this category, the Tribunal considers that the Organization was therefore obliged to transfer the complainant to a post compatible with her new family status. Had it not done so, UNESCO would not only have failed to follow its own rules but also and above all would have put the complainant and her child in danger, which would have been a serious breach of the duty that all international organisations have pursuant to the Tribunalís case law to adopt appropriate measures to ensure the safety of their staff members and, more generally, a breach of the duty of care towards them (see, inter alia, Judgments 4239, consideration 21, 3689, consideration 5, and 3025, consideration 2).

Reference(s)

ILOAT Judgment(s): 3025, 3689, 4239

Keywords

organisation's duties; duty station; duty of care; non-family duty station

Consideration 8

Extract:

[T]he Tribunalís case law [...] requires that a staff member who is to be transferred be informed in advance of the nature of the post proposed for her or him and, in particular, of the duties involved, so that she or he is able to comment on those new duties as well (see, for example,Judgments 4451, consideration 11, 3662, consideration 5, 1556, considerations 10 and 12, and 810, consideration 7).

Reference(s)

ILOAT Judgment(s): 810, 1556, 3662, 4451

Keywords

duty to inform; transfer; post description

Consideration 10

Extract:

The Tribunalís case law shows that an organisation that is intending to transfer a staff member is obliged to ensure that the implementation of that measure is preceded by proper notice enabling the staff member to make the necessary arrangements for the change in her or his duty station (see [...] Judgment 1556, consideration 12, Judgment 1496, considerations 11 and 13, and [...] Judgment 810, consideration 7). In the present case, the period of 11 days given to the complainant under the decision of 18 February 2013 to take up her new post at Headquarters clearly fell short of that requirement, particularly given that in practical terms the transfer in question involved moving from Kinshasa to Paris.

Reference(s)

ILOAT Judgment(s): 810, 1496, 1556

Keywords

time limit; duty station; transfer; notification

Consideration 16

Extract:

[T]he complainant is right in contending that the unlawfulness of the impugned decision caused her moral injury. The lack of advance information provided to the complainant about the content of the new duties she was to assume and the unduly short period of time she was given to take up her new post in Paris were such as to cause her stress and anxiety and adversely affected her rights and her dignity, which is characteristic of that form of injury.

Keywords

moral injury; time limit; duty to inform; transfer; post description; notification



 
Last updated: 25.04.2023 ^ top