Judgment No. 4342
1. The impugned decision of the President of IFAD of 10 December 2018 is set aside.
2. The matter is remitted to IFAD for the purpose identified in consideration 10 of the judgment.
3. IFAD shall pay the complainant 5,000 United States dollars as moral damages.
4. IFAD shall also pay the complainant 800 United States dollars as costs.
5. All other claims are dismissed.
The complainant challenges the decision not to select him for the position of Deputy General Counsel.
complaint allowed; decision quashed; case sent back to organisation; selection procedure
This is the complainant’s third complaint that is, together with his second complaint, being considered by the Tribunal at this session. There is an overlap between the legal and factual issues but neither the complainant nor IFAD sought the joinder of the two complaints. There will be no joinder.
[T]he fact that the complainant did not raise issues or objections during the process is of no legal consequence. Steps were taken in the selection process before the decision was made not to select the complainant and ultimately the decision to appoint another person. The complainant could not directly or immediately challenge those preliminary steps legally (see, for example, Judgment 3876, consideration 5). Moreover it could scarcely be expected that the complainant should run the risk of compromising his candidature by complaining about the conduct of those engaged in the selection process or otherwise complaining about the process at the time his application was being assessed.
Jugement(s) TAOIT: 3876
cause of action; selection procedure
The report of the Board contains one further error involving the broad generalisation that there is a “broad discretionary power that the Administration retains in procedures leading to appointments at the highest levels of the Organization”. It is true that the Tribunal has consistently emphasised the broad discretionary power of an organisation to appoint a person to a position and all the more so if it is a senior position (see, for example, Judgments 4208, consideration 2, and 2897, consideration 5). But in his brief submitted to the Board, the complainant made a number of quite specific complaints in support of his statement of appeal about the procedure followed referring, in particular, either to an Information Circular specifying temporary measures to fill positions through vacancy announcements or to the staff recruitment and appointment procedures in the Human Resources Implementing Procedures (HRIP). The reply of IFAD in the internal appeal contained the overarching argument that “the applicable rules and procedures governing the selection appointment of staff members, as set out in the Human Resources Policy, the Staff Rules, the HRIP and other applicable IFAD instruments, were fully complied with”. It may be that, properly construed, the provisions relied upon by the complainant either did not apply or had been satisfied. But it is not an adequate answer simply to say there is flexibility about procedure in relation to the filling of senior positions. The arguments had to be addressed.
Jugement(s) TAOIT: 2897, 4208
internal appeals body; motivation; report of the internal appeals body