Judgment No. 3321
1. The decision of the Director-General of the International Labour Office of 9 August 2011 and that of 10 August 2010 are set aside.
2. The Organization shall pay the complainant compensation in the amount of 10,000 Swiss francs for moral injury.
3. It shall also pay him 1,000 francs in costs.
4. All other claims are dismissed.
The complainant challenges the Director-General’s decision not to grant him personal promotion.
complaint allowed; decision quashed; personal promotion
The Tribunal’s case law has established that, by its very nature, the decision to grant personal promotion lies at the discretion of the executive head of an international organisation and is therefore subject to only limited review. For this reason, it may be quashed only if it was taken without authority, or in breach of a rule of form or of procedure, or if it rested on an error of fact or of law, or if some essential fact was overlooked, or if clearly mistaken conclusions were drawn from the evidence, or if there was abuse of authority (see, for example, Judgments 1815, under 3, 2668, under 11, or 3084, under 13).
Jugement(s) TAOIT: 1815, 2668, 3084
Contrary to the complainant’s submissions, it is plain from the evidence in the file that the Joint Panel did study the possibility of
granting him personal promotion under both of the tracks provided for in Article 6.8.2, paragraphs 2 and 3, of the Staff Regulations and that the examination made under the second track was based on the applicable criteria – which were less stringent in terms of professional merit. In addition, the complainant is wrong to contend that no reason was given for the recommendation not to grant him such promotion, since the Joint Panel’s report, which was produced by the ILO during the proceedings, clearly explains the grounds for this position.
Considerations 12 & 14
In addition to the anomalies just highlighted, which chiefly concern the conditions under which the complainant’s performance was examined, a further aberration was such as to undermine the lawfulness of the assessment of his conduct.
In his rejoinder the complainant draws attention to the fact that on 20 April 2000 he received a warning, which ought to have been withdrawn from his personal file after three years, in accordance with Article 12.3 of the Staff Regulations, and he contends that it would therefore not have been lawful to take account of this sanction in the disputed promotion exercise.
However, there is no reason for the Tribunal to order the grant of personal promotion requested by the complainant, nor is it appropriate, in the circumstances of this case, to refer the matter back to the Organization for review.
It is clear from the submissions in the file that, between 2000 and 2003, the complainant’s attitude towards his immediate supervisor had been one of insubordination and open animosity which, as the Tribunal already noted in the above-mentioned Judgment 2468, was not what might be expected of an international civil servant. The deletion of the sanction imposed on the complainant on 20 April 2000 cannot per se disguise the existence of this unacceptable conduct, which remains a fact. Since the applicable provisions require satisfactory conduct on the part of the official in his or her last grade, this factor alone manifestly prevented the grant of personal promotion to the complainant in the 2008 exercise.