Judgment No. 4411
1. The Director-General’s 18 July 2019 decision is set aside.
2. The FAO shall pay the complainant material damages as indicated in consideration 18 of the judgment.
3. The FAO shall pay the complainant moral damages in the amount of 30,000 euros.
4. The FAO shall pay the complainant for the remaining 37 days of her unused annual leave.
5. The FAO shall pay the complainant costs in the amount of 3,000 euros.
6. All other claims are dismissed.
The complainant challenges the decision to terminate her appointment as a result of the abolition of her post.
complaint allowed; decision quashed; fixed-term; abolition of post; termination of employment
In its pleadings before the Tribunal, the FAO again provided no information regarding the restructuring of LOG. In particular, the FAO did not adduce any evidence as to whether LOG was, in fact, restructured and, if so, when the decision to restructure LOG was taken, in particular, if the restructuring had occurred prior to the decision to abolish the complainant’s post. These were facts within the knowledge of the FAO that the FAO opted not to provide. In this regard, the FAO submits that it was “not legally obliged” to provide the complainant with “documentation on the proposed restructuring”, referring to Judgment 3920, consideration 11, and it emphasises that she has not “adduced any evidence to discharge her burden of proving that extraneous factors motivated the decision to abolish her post”. However, as the Tribunal observed in Judgment 3415, consideration 9, “[w]hile international organisations are entitled to defend proceedings before the Tribunal, and even do so robustly, it is singularly unhelpful and inappropriate for an organisation to refuse to provide documents sought by a complainant that are patently relevant to his case and then argue that the complainant has not furnished relevant evidence in support of that case”.
Jugement(s) TAOIT: 3415, 3920
evidence; burden of proof; organisation's duties; abolition of post; reorganisation
The complainant, who had reached the mandatory retirement age when she filed her complaint, does not seek reinstatement. However, she will be awarded material damages in an amount equal to the salary and allowances that she would have received, but for the unlawful termination of her appointment, for the remaining 16 months of her fixed-term contract. No deductions shall be made for health insurance contributions, as the complainant was not covered by the Organization’s health insurance scheme during that period. Equally, no deductions shall be made for the official’s contributions to the UNJSPF. These material damages shall also include an amount corresponding to the pension contributions that the Organization would have made on the complainant’s behalf had she continued to participate in the UNJSPF for the remaining 16 months of her contract. The complainant must give credit for any income from other employment during that period.
As stated in Judgment 3613, consideration 46, “[i]t is well established in the Tribunal’s case law that ‘international organisations are bound to refrain from any type of conduct that may harm the dignity or reputation of their staff members’ (Judgment 2861, under 91; see also Judgments 396, 1875, 2371, 2475 and 2720)”. Based on the nature of the content of the complainant’s communications with the Administration subsequent to her receipt of the email of 8 May 2017, it is clear that the unexpected notification of the abolition of her post and the termination of her appointment was a serious affront to the complainant’s dignity and caused her significant personal harm, for which she is entitled to an award of moral damages.
Jugement(s) TAOIT: 396, 1875, 2371, 2475, 2720, 2861, 3613
moral injury; respect for dignity; abolition of post
Regarding the complainant’s request for the payment of the remaining 37 days of her unused annual leave, as the Appeals Committee correctly noted, it was due to the unlawful termination of her appointment that the complainant could not use those days of leave prior to the expiry of her appointment. In these circumstances, the complainant is entitled to be paid the remaining 37 days of leave.
material injury; abolition of post; termination of employment; leave; annual leave