Judgment No. 631
The appeal is allowed and it is ordered that
1. The decision of the Director-General of 29 December 1983 be quashed;
2. The complainant be assigned as soon as possible to a post in the Organization commensurate with his grade, experience and abilities and that if he be not so assigned within three months he be placed on study leave or leave with pay;
3. The Organization pay to the complainant as compensation the sum of 25,000 United States dollars; and
4. The Organization further pay to the complainant $1,711 and 5,175 Swiss francs as partial reimbursement of his costs.
"The Director-General took the impugned decision in the exercise of his discretion. This means that the Tribunal will not interfere with it merely because they think it to be wrong. They must be satisfied, to put it briefly, that it was not only wrong but wrongly motivated or based on an error of law or a complete misapprehension of the facts. Moreover, where [...] the interests of the organization form the sole criterion for the decision, the Tribunal will be reluctant to interfere since the Director-General must normally be regarded as the best judge of what those interests are."
assignment; transfer; judicial review; discretion; organisation's interest
The Staff Rule on reduction in grade is applicable: it is not concerned with the personal grade of the staff member but with the grade of the post. "The Tribunal agrees that the decision was in substance a demotion. This follows almost automatically from the fact that it was a transfer from a P.6 to a P.5 post with lower responsibility. [...] To be diminished in responsibility and effectiveness can be just as hurtful as to be lowered in grade."
assignment; transfer; grade; downgrading; post
"It was not a proposal to reassign but an immediate and unconditional decision to reassign made irrespective of whether or not the Director-General would permit the retention of the P.6 grade on a personal basis. Such a decision could lawfully be made only on the ground of the complainant's unsatisfactory performance or misconduct." In breach of the applicable rules, the decision was given without reasons and taken without having given the complainant an opportunity to reply. The decision must be regarded as a demotion.
grounds; transfer; downgrading
The Tribunal finds downgrading of function and prejudice. The complainant asks that he be reassigned to a post "fully commensurate with his grade, experience and abilities: or [...] that he should be placed on [...] leave with pay until such time as a suitable post became available. The Tribunal considers this solution to be appropriate. The Tribunal would find it difficult to believe that such a post either at WHO headquarters or elsewhere could not be found for a man in the early fifties with an unbroken record of achievement in the service of the organization for nearly twenty years."
transfer; downgrading; bias
The complainant retains his P.6 grade on a personal basis, but is transferred, without reasons having been given, to a P.5 post. The Tribunal regards this as downgrading of function. "There is [...] much to be said for the argument that, whether or not there is a specific provision in the Staff Rules, as a matter of contractual obligation the administration ought not to take a decision injuriously affecting a staff member's career without first, as a matter of natural justice, giving him the reasons for the decision and getting his response."
duty to substantiate decision; professional injury; organisation's duties; transfer; grade; downgrading; post
The Tribunal finds downgrading of function and prejudice. "The complainant has sustained moral damage in that he has been denied the satisfaction of continuing to work in a job of high interest and responsibility which he had himself helped to create and been relegated to a position of lower responsibility and declining importance. This should be marked by a moderate award of money."
moral injury; downgrading