Judgment No. 3193
Decision
1. The Director-General's decision of 27 May 2010 is set aside.
2. WHO shall pay the complainant moral damages in the amount of 10,000 Swiss francs.
3. It shall also pay her 1,000 francs in costs.
4. All other claims are dismissed.
Summary
The complainant challenges both the reclassification of a vacant post and the appointment to that post of another staff member.
Consideration 12
Extract:
"In a case where a complainant establishes that the disputed decision involved an abuse of power, the appropriate relief is often to set aside the decision. Indeed, such a decision should not stand in the face of the conclusion that it involved an abuse of power. [However], in the somewhat unusual circumstances of this case, it would be inadvisable to set aside the disputed decisions notwithstanding the Tribunal’s finding that they involved an abuse of power. The appropriate remedy is therefore to award the complainant moral damages for the indirect consequences of the decisions the Tribunal has concluded were legally flawed."
Reference(s)
Jugement(s) TAOIT: 496
Keywords
moral injury; transfer; post classification; reassignment; organisation's interest; misuse of authority; abuse of power
Consideration 9
Extract:
"In Judgment 2803, under 8, the Tribunal observed that “according to a long line of precedent going back to Judgment 476, in order for there to be misuse of authority it must be established that the decision rested on considerations extraneous to the Organization’s interests”. Additionally, the staff member alleging abuse of authority bears the burden of establishing the improper purpose for which the authority was exercised (see Judgment 2104, under 8). It is also equally well established that the executive head of the organisation will generally be regarded as the best judge of what is in the organisation’s interests and the Tribunal will not normally interfere with that assessment. However, it is not sufficient to claim that a decision was taken in the interests of the organisation. The grounds upon which that conclusion is made must be clear to permit the Tribunal to exercise its power of review."
Reference(s)
Jugement(s) TAOIT: 2104, 2803
Keywords
duty to substantiate decision; judicial review; discretion; executive head; organisation's interest; misuse of authority; purpose; abuse of power
Judgment keywords
Keywords
complaint allowed; decision quashed; post classification
Considerations 10-12
Extract:
The Tribunal concludes that there was no evidentiary foundation for the HBA’s finding that the decisions were part of an approved plan.
It is clear from [these] considerations that the reclassification was inextricably linked to the lateral reassignment request. The only reasonable inference that can be drawn is that the reclassification and lateral reassignment decisions were not motivated by the needs of the Organization or the particular needs of NMH. Rather they were made to facilitate Mr A.’s personal interest in having his Assistant continue to work for him in his new position.
[I]n the somewhat unusual circumstances of this case, it would be inadvisable to set aside the disputed decisions notwithstanding the Tribunal’s finding that they involved an abuse of power. The appropriate remedy is therefore to award the complainant moral damages for the indirect consequences of the decisions the Tribunal has concluded were legally flawed.
Keywords
misuse of authority; abuse of power
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