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Judgment No. 4447

Decision

1. The impugned decision dated 14 March 2018 is set aside.
2. The case is remitted to the IOC in accordance with consideration 15 of this judgment.
3. The IOC shall pay the complainant costs in the amount of 8,000 euros.

Summary

The complainant challenges the withdrawal of some of her functions, arguing that such removal amounted to de facto demotion.

Judgment keywords

Keywords

complaint allowed; case sent back to organisation; demotion

Consideration 2

Extract:

In the complaint form, the complainant signifies that she wants oral proceedings under Article 12, paragraph 1, of the Tribunal’s Rules. The application is rejected as the Tribunal is satisfied that the detailed submissions and documents which the parties have provided are sufficient to permit it to resolve the issues in this case.

Keywords

oral proceedings

Consideration 5

Extract:

The complainant [...] asks the Tribunal to set aside the report of the Joint Committee on various bases. This request is however irreceivable as the Joint Committee has authority to make only recommendations, not decisions (see, for example, Judgment 4392, consideration 5). The Tribunal will merely determine whether, on the basis of the complainant’s allegations, the procedure of the Joint Committee was flawed, which may have had an impact on the impugned decision and warrant its setting aside.

Reference(s)

Jugement(s) TAOIT: 4392

Keywords

receivability of the complaint; report of the internal appeals body

Consideration 9

Extract:

Regarding the complainant’s allegation that the internal appeal procedure was flawed because her right to have her internal appeal heard by a properly functioning body was violated, the Tribunal recalls its statement, in Judgment 2671, consideration 11, that an internal appeal procedure that works properly is an important safeguard of staff rights and social harmony in an international organisation and, as a prerequisite of judicial review, an indispensable means of preventing disputes from going outside the organisation. It further stated that the notion of “working well” necessarily encompasses the requirement that the members of an internal appeal body should not only be impartial and objective in fact, but that they should so conduct themselves and be so circumstanced that a reasonable person in possession of the facts would not think otherwise. In this last regard, it is necessary only to observe that staff confidence in internal appeal procedures is essential to the workings of all international organisations and to preventing disputes from going outside those organisations.

Reference(s)

Jugement(s) TAOIT: 2671

Keywords

internal appeals body

Consideration 10

Extract:

The evidence does not reveal that the Joint Committee was not constituted in accordance with Article 2 of its Procedure. Nonetheless, its composition bears out the complainant’s observation that it could not be seen as an internal appeal body which was objective or impartial owing to the “contamination between professional tasks” and the overlapping of roles and functions. […] The Tribunal concludes that the obvious close administrative roles of some of the members of the Joint Committee violated the complainant’s right to have her internal appeal heard by a properly functioning body.

Keywords

impartiality; composition of the internal appeals body

Consideration 12

Extract:

[I]t is anomalous that a Legal Department, which is responsible for presenting the organization’s defence to a staff member’s internal appeal, should appear to work in concert with the appeal body (in this case the Joint Committee) whose duty is to fairly hold the balance of justice between the parties. The IOC’s statement that the complainant provides no evidence that the Legal Department gave any kind of orders to the external lawyer is of no moment.

Keywords

internal appeals body; impartiality

Consideration 14

Extract:

It is well established in the Tribunal’s case law that a staff member must, as a general rule, have access to all evidence and other materials on which an authority bases or intends to base its decision against her or him, and, under normal circumstances, such materials cannot be withheld on grounds of confidentiality, unless there is some special case in which a higher interest stands in the way of the disclosure of certain documents (see, for example, Judgment 4412, consideration 14). It is also well established that the principle of equality of arms must be observed by ensuring that all parties in a case are provided with all of the materials an appeal body uses in an internal appeal, and that the failure to do so constitutes a breach of due process (see, for example, Judgment 3586, consideration 17). These principles were violated when the complainant was not provided with her own copy of the external lawyer’s opinion before the hearing.

Reference(s)

Jugement(s) TAOIT: 3586, 4412

Keywords

internal appeals body; disclosure of evidence; due process; confidentiality

Consideration 15

Extract:

Given this irregularity in the internal appeal procedure, the case will be remitted to the IOC to be heard by a newly constituted Joint Committee and for a new decision to be taken by the Executive Director on its opinion.

Keywords

case sent back to organisation; procedural flaw

Consideration 15

Extract:

The complainant’s claim for material damages may only be realized if she prevails on her substantive pleas […]. Inasmuch as the present complaint succeeds on procedural grounds and the case will be remitted to the IOC, her claim for material damages remains in abeyance.

Keywords

material injury; case sent back to organisation; procedural flaw

Consideration 15

Extract:

[A]s the Tribunal is not satisfied that the complainant has articulated the injury she suffered as a result of the procedural irregularities leading to the setting aside of the decision, no award of compensation for moral damages which she seeks will be made.

Keywords

moral injury; procedural flaw



 
Dernière mise à jour: 07.03.2022 ^ haut