Judgment No. 3871
Decision
1. The decision of the Director-General of WHO of 24 December 2014 is set aside, except insofar as it awards the complainant costs and compensation for the injury suffered on account of the undue length of the internal appeal proceedings.
2. The complainant shall, as far as possible, be reinstated in WHO as from 8 March 2010, with all the legal consequences that this entails.
3. If WHO deems reinstatement to be impossible, it shall pay the complainant material damages, plus interest, calculated as indicated in consideration 17.
4. To the extent that it concerns the written reprimand received by the complainant on 25 September 2008, the case is remitted to WHO as indicated in consideration 10.
5. WHO shall, in any case, pay the complainant moral damages in the amount of 15,000 euros.
6. All other claims are dismissed.
Summary
The complainant challenges WHO’s refusal to reinstate him after the decision to dismiss him was set aside.
Judgment keywords
Keywords
complaint allowed; decision quashed; case sent back to organisation; reinstatement
Consideration 3
Extract:
As the Tribunal has consistently held, an international organization may not terminate the appointment of a staff member whose post has been abolished, at least if she or he holds an appointment of indeterminate duration, without first taking suitable steps to find her or him alternative employment (see, for example, Judgments 269, under 2, 1745, under 7, or 2207, under 9). When it has to abolish a post held by a staff member who holds a contract for an indefinite period of time, it must do all that it can to reassign that person as a matter of priority to another post matching her or his abilities and grade. If the attempt to find such a post proves fruitless, it is up to the organisation, if the staff member concerned agrees, to try to place her or him in duties at a lower grade and to widen its search accordingly (see Judgments 1782, under 11, or 2830, under 9).
The above-cited case law relating to the abolition of a post held by staff member holding a contract for an indefinite period also applies when examining the possibilities for reinstating an official with a continuous appointment who has been unlawfully dismissed on disciplinary grounds.
In the instant case, the Director-General therefore had a duty, in principle, to restore the status quo ante after having decided to set aside the decision to dismiss the complainant. Thus, regardless of the fact that the complainant’s previous post had been abolished, the Director-General was not free to choose between reinstatement and compensation.
Reference(s)
Jugement(s) TAOIT: 269, 1745, 1782, 2207, 2830
Keywords
reinstatement; abolition of post
Consideration 4
Extract:
[T]he time which has elapsed since dismissal does not, in principle, exempt an employer from taking steps to reinstate an official whose contract was ended unlawfully. Were that not the case, the employer could avoid having to reinstate the official following the setting aside of her or his dismissal simply by delaying the internal appeal proceedings initiated to challenge the dismissal.
Keywords
delay; reinstatement
Consideration 4
Extract:
WHO submits that the complainant’s reinstatement was not appropriate because it had lost trust in his ability to perform his duties satisfactorily. This submission will not, however, be accepted, as the complainant’s dismissal was based not on professional shortcomings but on disciplinary grounds.
Keywords
reinstatement
Consideration 6
Extract:
The case law related to [Article VII, paragraph 1, of the Statute of the Tribunal] requires that any person who claims to have exhausted internal means of redress must prove that she or he has exactly followed the procedure laid down in the staff regulations and in particular that she or he has observed the time limits set by the procedure (see, for example, Judgment 1469, under 16).
Reference(s)
ILOAT reference: Article VII, paragraph 1, of the Statute
Jugement(s) TAOIT: 1469
Keywords
internal remedies exhausted
Consideration 9
Extract:
According to the Tribunal’s case law, it is incumbent upon the sender of a document to prove, in the event of any dispute in this regard, that it was actually received by its addressee (see, for example, Judgment 2074, under 6).
Reference(s)
Jugement(s) TAOIT: 2074
Keywords
notification
Consideration 12
Extract:
The Tribunal’s case law has established that the question as to whether harassment has occurred must be determined in the light of a thorough examination of all the objective circumstances surrounding the events complained of. An allegation of harassment must be borne out by specific acts, the burden of proof being on the person who pleads it, but there is no need to prove that the accused person acted with intent (see Judgment 3233, under 6, and the case law cited therein).
Reference(s)
Jugement(s) TAOIT: 3233
Keywords
inquiry; harassment; investigation
Consideration 15
Extract:
Having regard in particular to the nature and duration of the appointment which the complainant formerly held, the Tribunal will order WHO to reinstate him, as far as possible, as from 8 March 2010, the date on which his dismissal took effect, with all the legal consequences that this entails.
If, however, WHO considers, in view of its staff complement and the availability of budgetary funds, that reinstatement is impossible, it will have to pay the complainant damages for the material injury caused by his unlawful removal from his post.
Keywords
reinstatement; material damages
Consideration 18
Extract:
Consistent precedent has it that the rule laid down in Article VII, paragraph 1, of the Statute of the Tribunal that internal means of redress must first be exhausted does not apply to a claim for compensation for moral injury, which constitutes a claim for consequential relief which the Tribunal has the power to grant in all circumstances (see Judgment 2609, under 10, or Judgment 3080, under 25).
Reference(s)
ILOAT reference: Article VII, paragraph 1, of the Statute
Jugement(s) TAOIT: 2609, 3080
Keywords
moral injury; internal remedies exhausted
Consideration 10
Extract:
[The HBA] found [...] that "the circumstances in which the reprimand of 25 September [2008] ha[d] been decided and upheld by the decision of [...] 4 November 2008 (recte 2009 ) [were] tainted with several procedural flaws".
It did not draw any consequences from this statement and made no recommendation in respect of the reprimand or the decision [...] upholding it. In her decision [...], the Director-General noted the "procedural shortcomings" recorded by the HBA in relation to the written reprimand [...], but she did not draw any conséquences from this.
In these circumstances, the case must be remitted to WHO in order that a final decision may be taken as soon as possible on the complainant's challenge of the written reprimand [...], after completion of the appeal procedure applicable to disciplinary matters on the date on which this judgment is delivered.
Keywords
case sent back to organisation
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