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Judgment No. 4499

Decision

1. The impugned decision of 25 March 2019 is set aside.
2. The case is remitted to the WCO in order that it may take the action indicated under consideration 14 of the judgment.
3. The Organization shall pay the complainant moral damages in the amount of 10,000 euros.
4. It shall also pay her 7,000 euros in costs.
5. All other claims are dismissed.

Summary

The complainant challenges the decision to terminate her appointment following the abolition of her post.

Judgment keywords

Keywords

complaint allowed; case sent back to organisation; abolition of post; late appeal

Consideration 6

Extract:

[T]he Tribunal considers that, in order to ensure that the complainant had the opportunity to exercise effectively her right of appeal against that decision, which was clearly of paramount importance to her because it involved the termination of her appointment, it was the WCO’s responsibility to inform her explicitly about the means of redress available to challenge it and the time limits for so doing. Although the Tribunal’s case law does not ordinarily place such an obligation on organisations, the WCO’s duty of care towards the complainant required, in this case, that it provide her with the necessary information on this point (for a comparable case involving a failure to state the means of redress and applicable time limits in the notification of a decision sent to a former staff member with a serious disability, see Judgment 3012, consideration 6, or, for a case involving failure to provide such information to an elderly former staff member in fragile health affected by a decision significantly reducing the coverage of her costs of residence in a nursing home, Judgment 4517, consideration 8).

Reference(s)

Jugement(s) TAOIT: 3012, 4517

Keywords

internal appeal; duty of care

Consideration 6

Extract:

In accordance with the principles governing the burden of proof when determining the receivability of complaints, it is of course up to the organisation to prove that formalities of this type were complied with (regarding proof of the date of due notification of a decision, for example, see Judgments 723, consideration 4, 2494, consideration 4, or 3034, consideration 13).

Reference(s)

Jugement(s) TAOIT: 723, 2494, 3034

Keywords

burden of proof

Consideration 8

Extract:

Under the Tribunal’s case law, any act by an officer of an organisation which has a legal effect constitutes [an administrative] decision (see, for example, Judgments 532, consideration 3, 1674, consideration 6(a), 2573, consideration 10, or 3141, consideration 21).

Reference(s)

Jugement(s) TAOIT: 532, 1674, 2573, 3141

Keywords

administrative decision

Consideration 9

Extract:

[T]he actual concept of a purely confirmatory decision, as referred to in the Tribunal’s case law, is not applicable unless a new decision confirms a prior final decision (see, for example, Judgments 1304, consideration 5, 2449, consideration 9, 3002, consideration 12, and 4118, consideration 3).

Reference(s)

Jugement(s) TAOIT: 1304, 2449, 3002, 4118

Keywords

confirmatory decision

Consideration 13

Extract:

[I]t should be recalled that, as the Tribunal’s case law has long emphasised, the right to an internal appeal is a safeguard which international civil servants enjoy in addition to their right of appeal to a judicial authority. Thus, except in cases where the staff member concerned forgoes the lodging of an internal appeal, an official should not in principle be denied the possibility of having the decision which she or he challenges effectively reviewed by the competent appeal body (see, for example, Judgments 2781, consideration 15, and 3067, consideration 20).This is especially so in this case since, under settled case law, the Tribunal exercises only a limited power of review concerning decisions to abolish posts, in the context of which it will not supplant the organisation’s assessment with its own (see, for example, Judgments 4099, consideration 3, or 4139, consideration 2), whereas the Appeals Board can undertake a more comprehensive review and can, in particular, issue recommendations on the basis of a different assessment or even on grounds of fairness or advisability (see, in particular, Judgment 3732, consideration 2, and the case law cited therein).
Lastly, in the event that the internal appeal procedure does not result in a final settlement of the dispute, the consideration by the Appeals Board of the circumstances in which the decision was taken to terminate the complainant’s appointment will be of great assistance by allowing the Tribunal to have before it the findings of fact and the items of information or assessment resulting from the deliberations of that body. Owing to its extensive knowledge of the functioning of the WCO and the broad investigative powers granted to it, the Appeals Board could provide valuable clarification of the circumstances of the instant case, which poses, beyond particular legal questions, sensitive questions of fact relating to the reasons for the contested abolition of post and possible opportunities for the complainant to be reassigned to a different post in the Organization.

Reference(s)

Jugement(s) TAOIT: 2781, 3067, 3732, 4099, 4139

Keywords

internal appeals body; internal appeal

Consideration 18

Extract:

The complainant has applied for oral proceedings and justifies that request by her wish “to be able to be heard personally by the judges so as to direct their attention as much to the seriousness of her situation as to the factors that have hither-to prevented her from defending herself”. However, since the Tribunal has considered it appropriate, on the basis of the written submissions alone, to set aside the decision refusing to convene the Appeals Board and to remit the case to the Organization for consideration on its merits, oral proceedings would not serve any purpose here. There is thus no need to accede to this request.

Keywords

oral proceedings

Consideration 5

Extract:

In these highly exceptional circumstances, the Tribunal considers that the complainant cannot be deemed – as officials of international organisations usually are – to have been fully aware of the means of redress available to her to challenge in due time the decision of which she had been informed and the applicable time limits. A medical certificate dated 15 January 2019 issued by the neuropsychiatrist responsible for the complainant’s psychotherapeutic care, which was submitted as evidence, confirms that she was “incapable of performing her administrative duties as normal during the period [under consideration] on account of her emotional and cognitive difficulties”. Furthermore, it is conceivable that the complainant, who had just resumed work for the Organization on the same day as she was notified of the decision in question, following a prolonged absence for the serious health reasons described above, was not able to keep in mind the content of the provisions of the Staff Manual concerning the dispute settlement procedure.

Keywords

internal appeal



 
Dernière mise à jour: 18.01.2023 ^ haut