Judgment No. 4405
1. The decision of the Registrar of the ICC of 4 January 2018, and the decisions to abolish the complainant’s post and to terminate her appointment, are set aside.
2. The ICC shall pay the complainant’s successors 160,000 euros in material damages.
3. The Court shall pay those successors 40,000 euros in moral damages.
4. It shall also pay them 5,000 euros in costs.
5. All other claims are dismissed.
The complainant challenges the decisions to abolish her post and terminate her fixed-term appointment.
complaint allowed; decision quashed; abolition of post; reorganisation; termination of employment
The Tribunal draws attention to its settled case law under which decisions concerning restructuring within an international organisation, including the abolition of posts, may be taken at the discretion of the executive head of the organisation and are consequently subject to only limited review. Accordingly, the Tribunal will ascertain whether such decisions are taken in accordance with the relevant rules on competence, form or procedure, whether they rest upon a mistake of fact or of law or whether they constituted abuse of authority. The Tribunal will not rule on the appropriateness of a restructuring or of decisions relating to it and it will not substitute the organisation’s view with its own (see, for example, Judgments 4004, consideration 2, 4180, consideration 3, and the case law cited therein).
Jugement(s) TAOIT: 4004, 4180
reorganisation; judicial review; discretion
In exercising the discretionary authority conferred by this provision, the Registrar must comply with the relevant statutory provisions and the case law.
[T]he decision to terminate the complainant’s appointment, which was based on the abolition of her position, is without legal foundation and is therefore also unlawful.
abolition of post; termination of employment
The complainant did not seek to be reinstated in the grade G-6 position which she had held. Regardless of the fact that she died in the course of proceedings, the Tribunal notes that, under its case law, reinstatement of a staff member who held a fixed-term contract is ordered only in exceptional cases (see, for example, Judgments 1317, consideration 38, and 3353, consideration 35). In a similar case involving the same organisation and another staff member, the Tribunal found that it was not appropriate to order the complainant’s reinstatement after his appointment had expired (see Judgment 3908, consideration 21). In this case, it would therefore have been inappropriate in any event to reinstate the complainant in her position.
Jugement(s) TAOIT: 1317, 3353, 3908
[T]he complainant is entitled to compensation for the material injury caused to her by the [...] decisions set aside by the Tribunal. She will therefore be awarded, under this head, a lump sum calculated on the basis of her gross salary and the allowances which she would have received until her death, during the term of her contract, on 28 October 2019 and the sum of the contributions which the Court would have paid, in the same period, to the United Nations Joint Staff Pension Fund, less the amount of any indemnities the complainant received on the termination of her appointment.
In the light of the evidence, the Tribunal considers that the material injury suffered by the complainant will be fairly redressed by setting the amount of this lump sum at 160,000 euros.
material injury; death
Plainly, the unlawfulness of the abolition of the complainant’s position and the subsequent termination of her appointment caused her moral injury. That injury was, in this case, compounded by the complainant’s distressing situation following her separation from service, which took place while she was receiving extensive medical treatment of which the ICC had been informed. It was also compounded by the fact that the Court, which has itself acknowledged that it failed in its duty of care in this respect, did not make every effort to “explore with the complainant other employment options before prior to [her] separation”.
moral injury; duty of care