Judgment No. 4622
1. The decision of the Director-General of the ILO of 22 October 2019, and the decisions of 9 May 2018 and 14 January 2019, are set aside.
2. The ILO shall pay the complainant material damages and interest thereon, calculated as indicated in consideration 16 of the judgment.
3. The Organization shall pay the complainant moral damages in the amount of 30,000 Swiss francs.
4. It shall also pay her 1,000 Swiss francs in costs.
5. All other claims are dismissed.
The complainant challenges the decision to terminate her appointment for reasons of health.
complaint allowed; termination of employment; health reasons; termination of employment for health reasons
[S]uch a delegation would have been legally impossible, since it is a general rule that an authority or body cannot legally delegate its powers to a third party unless the rules expressly provide for this (see, for example, Judgments 3494, consideration 16, 1696, consideration 5, or 1477, consideration 7 in fine). Obviously, there was no provision allowing the Invalidity Committee to delegate powers to the multidisciplinary team that was established in this case, which was an ad hoc body not provided for in the Organization’s Staff Regulations.
ILOAT Judgment(s): 1477, 1696, 3494
The Tribunal observes that [the] requirement of consultation was all the more important given that the composition of the Invalidity Committee – which, under article 10.4 of the Staff Regulations, includes a medical practitioner appointed by the official concerned, another medical practitioner appointed in agreement with the first medical practitioner, and a member appointed by the Staff Union Committee – constituted a safeguard for the complainant that was not provided by the composition of the multidisciplinary team, which was made up solely of persons appointed by the Organization.
The fact referred to by the Organization in its submissions, that the secretary of the Invalidity Committee had informed the complainant in the email forwarding the report of 6 February 2017 to her that “[t]he procedure before the Invalidity Committee [was] now complete” and that “any decision taken following that report [would] be communicated to [her] directly by the Administration”, did not prevent the further consultation of that body that was thus required. The inclusion of these statements, which are standard formulations used when communicating such reports, plainly could not prevent the Invalidity Committee from exercising its authority if the multidisciplinary team failed in its task of identifying a suitable position.
advisory body; invalidity; consultation
Considerations 10 and 13
Under the Tribunal’s settled case law, which is based on a general principle of international civil service law, the administrative status of a staff member cannot be unilaterally altered to her or his detriment by the employing organisation without that staff member having been given the opportunity to comment on the proposed measure beforehand (see, for example, Judgments 3124, consideration 3, 1817, consideration 7, or 1484, consideration 8). Clearly, this case law must be applied with the utmost stringency where a decision with such far-reaching consequences as the termination of an appointment is involved.
The Tribunal points out that, far from being a mere procedural flaw, the breach of the right to be heard identified above had a tangible bearing on the outcome of the present case. If the complainant had been given the opportunity to submit comments during the attempt to identify a position accommodating her functional impairments, she could, for example, have provided the multidisciplinary team with useful information for determining jobs at her level of responsibility that she herself considered could be adapted to her needs, which might have allowed the team to conduct its search more effectively. Similarly, if the complainant had been allowed to comment on the team’s report before the decision on her situation was taken, she could have pointed out several shortcomings in it that were correctly identified by the JAAB in its opinion, such as the lack of an exact list of positions examined during the search and the failure to give sufficient consideration to her options for vocational retraining. Thus, although the Tribunal considers that the material in the file does not permit a formal finding that, as the JAAB concluded, the Office did not genuinely use all available means to identify a position that could be allocated to the complainant, it is in any event clear that it was essential to the quality of the decision-making process that any comments made by the complainant on the efforts undertaken to that end be taken into account.
ILOAT Judgment(s): 1484, 1817, 3124
termination of employment; right to be heard
Under the Tribunal’s settled case law, a staff member must, as a general rule, have access to all evidence on which an authority bases or intends to base a decision that adversely affects her or him (see, for example, Judgments 3688, consideration 29, 3295, consideration 13, or 2700, consideration 6). In the present case, the complainant ought therefore to have been provided with the report in question in sufficient time to allow her to challenge its conclusions before the decision on her situation was taken, as there was clearly no legitimate reason preventing its disclosure to her.
ILOAT Judgment(s): 2700, 3295, 3688
disclosure of evidence
[T]he Tribunal will not order the complainant’s reinstatement at the ILO.
Reinstatement appears inappropriate as the evidence shows that, given the nature and extent of the complainant’s functional impairments, there is a significant risk that, even if the ILO were able to identify a position that could be adapted, the Organization would not find the conditions under which the position would be held satisfactory and that the complainant would therefore inevitably be placed in a situation that in reality would not be particularly rewarding and in any event would not allow her to achieve her full potential in her work. From that perspective, the Tribunal considers that, ultimately, in the complainant’s own interests and in view of the many years of employment she could still have ahead, it is objectively preferable that she endeavour to redirect her career towards an occupation that is more naturally compatible with the impairments in question than the administrative roles likely to be offered to her in the Organization.
Moreover, an examination of the file reveals the existence of tension between the complainant and the Organization, borne out by the heated tone of the written submissions exchanged by the parties in the present proceedings, which would undoubtedly make it difficult in practice for the complainant to return to the Office. In that regard, the Tribunal notes that, in its 2014 report, the Invalidity Committee had already observed that the complainant’s reinstatement, while it should certainly “be attempted in the first instance”, would nonetheless be “hard” for her emotionally. As it is, the conflictual nature of her relationship with the Office appears to have only been confirmed, if not exacerbated, since then.
[T]he complainant was denied a valuable opportunity to retain her employment with the ILO at least on a temporary basis as a result of the flaws in the termination of her appointment, and she is therefore entitled to compensation for the material injury caused.
Having regard, in particular, to the complainant’s age at the time of the termination of her appointment, which was only 43, and to the fact that she had held an appointment without limit of time since 2008, the Tribunal considers that, in the present case, this injury will be fairly redressed by ordering the ILO to pay the complainant, in addition to the sums already awarded to her on termination of her appointment, the equivalent of the salary and allowances of all kinds which she would have received if her appointment had continued beyond 31 May 2018 for two years, net of any income from employment that she may have received during this period. The Organization must also pay her the equivalent of the pension contributions that it would ordinarily have had to pay to the United Nations Joint Staff Pension Fund as her employer for the same period. All these amounts shall bear interest at the rate of 5 per cent per annum as from the respective dates on which they fell due until the date of their payment.
material injury; loss of opportunity
The unlawful termination of the complainant’s appointment also caused her significant moral injury owing to its intrinsic nature, serious consequences and the breach of her rights that accompanied its adoption. That injury also warrants redress. As the complainant correctly states, the injury was further exacerbated by the length of the administrative procedures, which lasted more than five years from the instigation of the first attempt to terminate her appointment in January 2013 until the adoption of the decision of 9 May 2018, even without taking into account the subsequent internal appeal procedure. The slowness of the procedures, which their complexity, referred to by the Organization, is not sufficient to fully justify, had the effect of unduly placing the complainant in a situation of prolonged, inherently stressful uncertainty regarding the future of her employment with the Organization. In the circumstances of the case, the Tribunal considers that the moral injury will be fairly and entirely redressed by awarding the complainant damages in the amount of 30,000 Swiss francs under this head.
moral injury; delay
The complainant asks the Tribunal to order the ILO to “take any other measures necessary to accommodate her” and, in particular, to bear the costs of any vocational retraining aiming to enable her to work in a job compatible with her functional impairments. However, the Tribunal is not competent to make orders of this kind against international organisations (see, for example, Judgments 4039, consideration 17, 3835, consideration 6, or 3506, consideration 18).
ILOAT Judgment(s): 3506, 3835, 4039
competence of tribunal; injunction