Judgment No. 4084
1. The impugned decision is set aside to the extent indicated in consideration 18 of the judgment.
2. WIPO shall pay the complainant 20,000 Swiss francs in moral damages.
3. WIPO shall pay the complainant 7,000 Swiss francs in costs.
4. All other claims are dismissed.
The complainant challenges the decision to transfer her and the appointment of another staff member without a competitive recruitment process.
complaint allowed; decision quashed; transfer; appointment without competition
The complainant applies for an oral hearing, and, pursuant to Article 12, paragraph 1, of the Tribunal’s Rules, identifies persons “whose testimony will establish that the Organization transferred [her] in breach of her rights”. The application is dismissed in view of the ample submissions and evidence provided by the parties, which fully inform the Tribunal about the case.
ILOAT reference: Article 12, paragraph 1, of the Rules
The complainant applies for the disclosure of documents in these terms:
“The Complainant hereby requests that she be provided with true copies of the following documents or items simultaneously with the submission of the Administration’s Reply in order to allow for the Complainant to analyse and comment on same in her Rejoinder: any and all accounting records, documents, reports, correspondence, e-mails, notes, records, memoranda, letters, notices, file contents, minutes, minuted phone calls, or any other documents or items in the possession of the Administration that in any way describe, comment on, relate or refer to, control, record, and/or evidence, in general or specifically, the reclassification or establishment of the Complainant’s post. [...]”
The application is dismissed because, cast in these general and imprecise terms, it is based on the mere speculation that something will be found in those documents that will further the complainant’s case. It constitutes an impermissible “fishing expedition” (see, for example, Judgments 2510, under 7, and 3345, under 9).
Jugement(s) TAOIT: 2510, 3345
disclosure of evidence
On the merits, it is convenient to recall that an executive head of an international organization has wide discretionary powers to manage the affairs of the organization pursuant to the policy directives and its rules. The discretion includes making decisions relating to the structure of the organization, its departments, divisions or sections, including their restructuring to meet policy objectives, as well as decisions relating to the creation and abolition of posts and the transfer of staff as a part of the process. Firm precedent has it that such decisions are consequently subjected to only limited review. Accordingly, the Tribunal will ascertain whether the decisions are taken in accordance with the relevant rules on competence, form or procedure; rest upon a mistake of fact or law or whether they amount to abuse of authority. The Tribunal will not rule on the appropriateness of the decisions as it will not substitute the organization’s view with its own (see, for example, Judgments 2742, under 34, and 3488, under 3).
Jugement(s) TAOIT: 2742, 3488
transfer; judicial review; discretion
The complainant contends that, contrary to Staff Regulation 4.3(a), her transfer was not in the best interest of WIPO and that no consideration was given to her interests. The Tribunal has consistently stated that what is in the interest of an organization should be left to the organization to decide (see Judgment 2105, under 17) and that greater caution must be shown before interfering with such decisions because the executive head must ordinarily be deemed to be the best judge of what the interests of the organization are (see Judgment 1050, under 4, and Judgment 3193, under 9).
Jugement(s) TAOIT: 1050, 2105, 3193
executive head; organisation's interest