Abolition of post (379, 380, 381, 382, 649, 383,-666)
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Keywords: Abolition of post
Total judgments found: 167
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Judgment 4077
127th Session, 2019
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The UPU applies for interpretation and review of Judgment 3928 alleging errors of fact, inter alia, and asserts that it is impossible to give effect to the Tribunal’s order to reinstate the complainant. The complainant applies for execution of Judgment 3928.
Consideration 23
Extract:
[W]hen a decision to abolish a post is set aside by the Tribunal, there is no need for a new decision to recreate that post. Therefore, the UPU had only to make the administrative arrangements for reinstating the complainant with all the legal consequences that this entailed.
Keywords:
abolition of post; reinstatement;
Consideration 25
Extract:
[T]he [organization] could not refer to the complainant’s alleged misconduct as a reason not to reinstate him as no disciplinary proceeding has occurred in that regard, so misconduct has never been proven. It is all the more grave when considering that the alleged reason for the abolition of the posts was because of financial constraints. The abolition of a post can never be based on a staff member’s conduct, as that would constitute a hidden sanction. The [organization]’s presentation before the Council of Administration constituted a breach of the duty of care and of the adversarial principle, as the complainant was not given any opportunity to defend himself and his reputation from the allegations. The UPU must respect the dignity of its staff and preserve their reputation.
Keywords:
abolition of post; adversarial proceedings; budgetary reasons; due process; duty of care; hidden disciplinary measure; misconduct; reinstatement;
Judgment keywords
Keywords:
abolition of post; application filed by the organisation; application for execution; application for interpretation; application for review; complaint allowed; reinstatement;
Judgment 4036
126th Session, 2018
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests UNESCO’s decisions to abolish his post and to terminate his appointment.
Judgment keywords
Keywords:
abolition of post; complaint allowed; termination of employment;
Consideration 15
Extract:
It is often the case in a challenge to a decision to abolish a post that the aggrieved staff member, in this case the complainant, will develop arguments, often at length, as to how the restructuring might have been done differently and without the consequence of their post being abolished. But whether it could have been done differently is usually, as it is in this case, beside the point. It is sufficient for the organisation to point to legitimate reasons for the action actually taken. UNESCO has done so in this case.
Keywords:
abolition of post;
Considerations 7-10
Extract:
There are many judgments of the Tribunal concerning the obligations of an international organisation towards staff whose positions have been abolished as a result of a reorganization or restructuring. A recent one is Judgment 3908. [...]
[A]s noted in Judgment 3908, consideration 14, a document such as an Administrative Circular and what it might say about steps to be taken to redeploy staff cannot circumscribe exhaustively UNESCO’s obligations towards staff whose positions have been abolished.
The complainant was offered one post in the redeployment process [...], but he declined the offer. UNESCO relies on this offer as part of its argument that it took adequate steps to redeploy the complainant. The complainant expressed interest in two other positions, which had been listed on the HRM website and to which he could have been reassigned as part of the redeployment process set out in Administrative Circular AC/HR/28 and Memorandum DDG/2013/13. He was unsuccessful in securing appointment to those positions, as they were ultimately filled by officials whose positions also had been abolished. No criticism can be made of UNESCO in following this approach (see the observations of the Tribunal in consideration 16 of Judgment 3908 [...]).
[...] However, as discussed in Judgment 3908, considerations 14 to 16, an organisation’s obligation to find another position for a member of staff whose post has been abolished extends, at least in principle, to any vacant position within the organisation involving duties which the member of staff would be qualified and able to perform. In this context, UNESCO argues that the complainant should have, but failed to, challenge in separate proceedings his non-appointment to any, or all, of these four additional positions. However, for the reasons just given concerning the extent of the organisation’s obligation, he is able to challenge his non-appointment as part of a challenge to the termination of his employment arising from his non-redeployment within UNESCO.
Reference(s)
ILOAT Judgment(s): 3908
Keywords:
abolition of post; reassignment;
Judgment 4009
126th Session, 2018
Energy Charter Conference
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to extend his fixed-term contract following the abolition of his post, but to give him a Project Staff contract.
Judgment keywords
Keywords:
abolition of post; complaint allowed; decision quashed; fixed-term; non-renewal of contract;
Consideration 15
Extract:
[A]s the Tribunal has consistently held, although job abolitions may arise from a restructuring, they must be justified by real needs and not be immediately followed by the creation of equivalent posts (see Judgments 3422, under 2, and 2156, under 8).
Reference(s)
ILOAT Judgment(s): 2156, 3422
Keywords:
abolition of post;
Judgment 4008
126th Session, 2018
Energy Charter Conference
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: In her first complaint, the complainant challenges the decision not to extend her fixed-term contract following the abolition of her post, but to give her a Project Staff contract. In her second complaint, she challenges three vacancy notices concerning C category posts and in her third complaint, she challenges the rejection of her application for two of these posts.
Judgment keywords
Keywords:
abolition of post; competition; complaint allowed; decision quashed; fixed-term; non-renewal of contract;
Consideration 15
Extract:
[A]s the Tribunal has consistently held, although job abolitions may arise from a restructuring, they must be justified by real needs and not be immediately followed by the creation of equivalent posts (see Judgments 3422, under 2, and 2156, under 8).
Reference(s)
ILOAT Judgment(s): 2156, 3422
Keywords:
abolition of post;
Judgment 4007
126th Session, 2018
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainants challenge their redeployment following a restructuring.
Considerations 5 and 8
Extract:
In Judgment 3907, [...] the Tribunal considered the lawfulness of the Principles and Procedures. At consideration 26, the Tribunal held:
“As the promulgation of the Principles and Procedures by Information Circular was in violation of the Presidential Directive, they were without legal foundation and are, therefore, unlawful as are the decisions taken pursuant to the Principles and Procedures. It follows that the decisions to abolish the complainant’s position and to terminate the complainant’s appointment were also unlawful and will be set aside.” [...]
The ICC does not dispute the fact that the redeployment was effected pursuant to the Principles and Procedures and does not seek to establish that it could have been done lawfully by other means. Accordingly, for the reasons stated in Judgment 3907, the redeployment decisions are unlawful and will be set aside, as will the impugned decisions [...]. In the circumstances, a consideration of whether the complainants’ positions underwent substantial changes as a result of the redeployment is unnecessary.
Reference(s)
ILOAT Judgment(s): 3907
Keywords:
abolition of post; patere legem; publication;
Judgment 4004
126th Session, 2018
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the rejection of his appeal against the abolition of his post and the termination of his fixed-term appointment, which was filed after he had accepted a mutually agreed separation.
Judgment keywords
Keywords:
abolition of post; complaint allowed; decision quashed; fixed-term; reorganisation; termination of employment;
Consideration 2
Extract:
Firm precedent has it that decisions concerning restructuring within an international organization, including the abolition of posts, may be taken at the discretion of the executive head of the organization 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 law, or whether they constituted abuse of authority. The Tribunal will not rule on the appropriateness of the restructuring, as it will not substitute the organization’s view with its own (see, for example, Judgments 2742, under 34, and 2933, under 10).
Reference(s)
ILOAT Judgment(s): 2742, 2933
Keywords:
abolition of post; discretion; limits;
Considerations 6-7
Extract:
Among other issues which he raises, the complainant challenges the legal validity of the Information Circulars, and, by extension, the Principles and Procedures contained therein, under which his post was abolished and he separated from the ICC. He argues that by publishing the Principles and Procedures in the Information Circulars, the Registrar breached the method stipulated for their promulgation as provided in the Presidential Directive ICC/PRESD/G/2003/001 (the Presidential Directive). The Tribunal considered this very question in a detailed analysis in Judgment 3907 and concluded as follows in consideration 26:
“In conclusion, pursuant to the Presidential Directive, the Principles and Procedures should have been promulgated by an Administrative Instruction or, arguably, by a Presidential Directive. As the promulgation of the Principles and Procedures by Information Circular was in violation of the Presidential Directive, they were without legal foundation and are, therefore, unlawful as are the decisions taken pursuant to the Principles and Procedures. It follows that the decisions to abolish the complainant’s position and to terminate the complainant’s appointment were also unlawful and will be set aside.”
This finding also holds for the present complaint, with the result that the decisions to abolish the complainant’s post and to terminate his appointment were unlawful since the Principles and Procedures upon which they were made were promulgated in breach of the process stipulated in the Presidential Directive. The Separation Agreement arose from the implementation of the unlawful Principles and Procedures. The Separation Agreement is therefore unenforceable. In the circumstances, the ICC’s contention that the complaint is irreceivable is unsustainable and is rejected. Accordingly, the decisions to abolish the complainant’s position and to terminate his appointment will be set aside.
Reference(s)
ILOAT Judgment(s): 3907
Keywords:
abolition of post; agreed termination; patere legem; publication;
Judgment 3948
125th Session, 2018
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision not to renew her fixed-term contract.
Consideration 6
Extract:
[T]he plea of abuse of authority in relation to the non-renewal decision is one of the generic grounds of challenge to a discretionary administrative decision. Thus the following was stated in Judgment 3172, consideration 16:
“A decision taken for an improper purpose is an abuse of authority. It follows that when a complainant challenges a discretionary decision, he or she by necessary implication also challenges the validity of the reasons underpinning that decision. In this respect, the Tribunal may examine the circumstances surrounding the abolition of the post to determine whether the impugned decision was tainted by abuse of authority.”
Reference(s)
ILOAT Judgment(s): 3172
Keywords:
abolition of post; abuse of power; misuse of authority;
Judgment 3940
125th Session, 2018
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to abolish his post.
Consideration 3
Extract:
The Tribunal’s case law concerning the abolition of a post in the context of a restructuring process was succinctly stated in Judgment 2830, under 6: “(a) An international organisation may find that it has to reorganise some or all of its departments or units. Reorganisation measures may naturally entail the abolition of posts, the creation of new posts or the redeployment of staff (see Judgments 269, 1614, 2510 and 2742). The steps to be taken in this respect are a matter for the Organization’s discretion and are subject to only limited review by the Tribunal (see Judgments 1131, under 5, and 2510, under 10).
(b) The Tribunal has consistently held that ‘there must be objective grounds’ for the abolition of any post. It must not serve as a pretext for removing staff regarded as unwanted, since this would constitute an abuse of authority (see Judgment 1231, under 26, and the case law cited therein)’.”
Reference(s)
ILOAT Judgment(s): 2830
Keywords:
abolition of post; reorganisation;
Consideration 2
Extract:
The Tribunal has consistently held that a distinction must be made between a decision to abolish a post and a decision to terminate an appointment (see, for example, Judgment 3755, under 3).
Reference(s)
ILOAT Judgment(s): 3755
Keywords:
abolition of post; decision; termination of employment;
Judgment keywords
Keywords:
abolition of post; complaint allowed; decision quashed; fixed-term; outsourcing;
Judgment 3933
125th Session, 2018
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his appointment.
Judgment keywords
Keywords:
abolition of post; complaint allowed; non-renewal of contract; permanent appointment;
Consideration 5
Extract:
There is some support in the Tribunal’s case law for the proposition that it is open to the Tribunal to examine the circumstances surrounding the abolition of a post in a challenge to the subsequent termination of a staff member’s employment, even if no legal challenge was made, within time or at all, to the abolition of the post itself (see Judgment 3172, consideration 16). However even if, in the face of more recent case law referred to in the preceding consideration, it is open to the Tribunal to do so, it is for the limited purpose of, for example, ascertaining whether there has been an abuse of authority which entails consideration of whether the decision was taken for an improper purpose. The case law certainly does not provide a licence to examine all or any other aspects of the decision to abolish the post in the context of dealing with a challenge to the subsequent termination of employment.
Reference(s)
ILOAT Judgment(s): 3172
Keywords:
abolition of post; abuse of power; judicial review; misuse of authority;
Consideration 8
Extract:
[I]t is open to the complainant to impugn the redeployment process, as he does in his pleas under his second heading, if a failure to redeploy him has led to the termination of his employment (see, for example, Judgment 3727).
Reference(s)
ILOAT Judgment(s): 3727
Keywords:
abolition of post; reassignment; termination of employment;
Judgment 3930
125th Session, 2018
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to abolish her post and to terminate her appointment while she was on sick leave.
Judgment keywords
Keywords:
abolition of post; complaint allowed; permanent appointment; termination of employment;
Judgment 3929
125th Session, 2018
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to abolish her post and to terminate her appointment while she was on sick leave.
Judgment keywords
Keywords:
abolition of post; complaint allowed; decision quashed; fixed-term; termination of employment;
Consideration 8
Extract:
The Tribunal recalls that “[a]ccording to firm precedent, a decision concerning the restructuring of an international organisation’s services, which leads to the abolition of a post, may be taken at the discretion of its executive head and is subject to only limited review by the Tribunal. The latter must therefore confine itself to ascertaining whether the decision was taken in accordance with the rules on competence, form or procedure, whether it involves a mistake of fact or of law, whether it constituted abuse of authority, whether it failed to take account of material facts, or whether it draws clearly mistaken conclusions from the evidence. The Tribunal may not, however, supplant an organisation’s view with its own (see, for example, Judgments 1131, under 5, 2510, under 10, and 2933, under 10). Nevertheless, any decision to abolish a post must be based on objective grounds and its purpose may never be to remove a member of staff regarded as unwanted. Disguising such purposes as a restructuring measure would constitute abuse of authority (see Judgments 1231, under 26, 1729, under 11, and 3353, under 17)” (Judgment 3582, under 6).
Reference(s)
ILOAT Judgment(s): 1131, 1231, 1729, 2510, 2933, 3353, 3582
Keywords:
abolition of post; abuse of power; discretion; limits; misuse of authority; reorganisation;
Consideration 12
Extract:
According to the Tribunal’s case law: “[w]hether the post was abolished for financial reasons is a question of fact. Those facts were within the knowledge of [the organization] and it must show that when it advanced financial reasons as a ground for the abolition of the complainant’s post this was genuine. It has not done so. In the absence of that evidence, it is determined that the complainant’s post was unlawfully abolished and the claim on this ground is well founded” (see Judgment 3688, under 18). In the Tribunal’s view, the UPU has not presented sufficient evidence to support its assertion that the abolition of posts was for urgent financial reasons.
Reference(s)
ILOAT Judgment(s): 3688
Keywords:
abolition of post; budgetary reasons; burden of proof;
Judgment 3928
125th Session, 2018
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to abolish his post and to terminate his appointment while he was on sick leave.
Consideration 15
Extract:
It should also be noted that, in breach of the UPU’s duty of care and duty to protect the dignity of its staff members, the complainant was not even notified directly of the abolition of his post. He was instead informed, as all staff, via the publication of a corrigendum of January 2015 to internal memorandum No. 02/2015, stating, inter alia, that a “P3 Post (French Translation Service)” would be abolished (along with the other four posts). The Tribunal recalls that “[t]he decision to abolish a post must be communicated to the staff person occupying the post in a manner that safeguards that individual’s rights. These rights are safeguarded by giving proper notice of the decision, reasons for the decision and an opportunity to contest the decision. As well, subsequent to the decision there must be proper institutional support mechanisms in place to assist the staff member concerned in finding a new assignment” (see Judgment 3041, under 8).
Reference(s)
ILOAT Judgment(s): 3041
Keywords:
abolition of post; duty of care; duty to inform;
Judgment keywords
Keywords:
abolition of post; complaint allowed; decision quashed; permanent appointment; reinstatement; termination of employment;
Consideration 9
Extract:
The Tribunal recalls that “[a]ccording to firm precedent, a decision concerning the restructuring of an international organisation’s services, which leads to the abolition of a post, may be taken at the discretion of its executive head and is subject to only limited review by the Tribunal. The latter must therefore confine itself to ascertaining whether the decision was taken in accordance with the rules on competence, form or procedure, whether it involves a mistake of fact or of law, whether it constituted abuse of authority, whether it failed to take account of material facts, or whether it draws clearly mistaken conclusions from the evidence. The Tribunal may not, however, supplant an organisation’s view with its own (see, for example, Judgments 1131, under 5, 2510, under 10, and 2933, under 10). Nevertheless, any decision to abolish a post must be based on objective grounds and its purpose may never be to remove a member of staff regarded as unwanted. Disguising such purposes as a restructuring measure would constitute abuse of authority (see Judgments 1231, under 26, 1729, under 11, and 3353, under 17)” (Judgment 3582, under 6).
Reference(s)
ILOAT Judgment(s): 1131, 1231, 1729, 2510, 2933, 3353, 3582
Keywords:
abolition of post; abuse of power; discretion; limits; misuse of authority; reorganisation;
Consideration 13
Extract:
According to the Tribunal’s case law: “[w]hether the post was abolished for financial reasons is a question of fact. Those facts were within the knowledge of [the organization] and it must show that when it advanced financial reasons as a ground for the abolition of the complainant’s post this was genuine. It has not done so. In the absence of that evidence, it is determined that the complainant’s post was unlawfully abolished and the claim on this ground is well founded” (see Judgment 3688, under 18). In the Tribunal’s view, the UPU has not presented sufficient evidence to support its assertion that the abolition of posts was for urgent financial reasons.
Reference(s)
ILOAT Judgment(s): 3688
Keywords:
abolition of post; budgetary reasons; burden of proof;
Judgment 3920
125th Session, 2018
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate her fixed-term appointment pursuant to the abolition of her post.
Judgment keywords
Keywords:
abolition of post; complaint allowed; fixed-term; termination of employment;
Consideration 10
Extract:
It is well settled in the Tribunal’s case law that if a decision is taken to abolish a post, then the staff member occupying the post is entitled to know the reasons for that decision in a manner that safeguards the individual’s rights (see, for example, Judgments 3290, consideration 14, and 3041, consideration 8).
Reference(s)
ILOAT Judgment(s): 3041, 3290
Keywords:
abolition of post; duty to substantiate decision;
Consideration 13
Extract:
[W]hen a post is abolished for financial reasons it is incumbent on the organisation to demonstrate that this was genuine, given that the relevant facts are within the knowledge of the organisation (see Judgment 3688, consideration 18).
Reference(s)
ILOAT Judgment(s): 3688
Keywords:
abolition of post; budgetary reasons; burden of proof;
Considerations 11-12
Extract:
If, as a matter of practice or by operation of staff rules, regulations or other normative legal documents, internal documents are created by management proposing the abolition of a post and the post is abolished, the organisation is not under a legal obligation to provide those documents to the person whose post is to be abolished (see Judgment 2885, consideration 6). Nevertheless, the organisation is obliged to inform the affected staff member of the reasons for the abolition of the post. That obligation can be discharged (though it was not in the present case) by setting out in another document, as is often the case in a letter informing the staff member that the post is abolished, reasons which may have been discussed in internal management documents created in the lead-up to the decision to abolish the post. [...]
Even if a document is confidential, this ordinarily does not provide a basis for not providing the complainant with a copy of it, which might potentially be an important document, in adversarial proceedings such as the internal appeal procedure where the document is relied on by the organization (see, for example, Judgment 3862, consideration 11). The complainant, in this case, was entitled to see the evidence advanced by the Organization in the internal appeal procedure in order to equip her to provide rebutting evidence or to otherwise challenge the evidence or comment on it. These legal principles are rooted in judgments of the Tribunal made well before these proceedings commenced (see, for example, Judgment 2700, consideration 6). While it is not an issue raised directly by the complainant in her pleas, this failure to uphold the complainant’s due process rights warrants an award of moral damages which the Tribunal assesses in the sum of 15,000 United States dollars.
Reference(s)
ILOAT Judgment(s): 2885
Keywords:
abolition of post; duty to inform;
Judgment 3918
125th Session, 2018
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his continuing appointment pursuant to the abolition of his post.
Consideration 5
Extract:
[T]he Director-General accepted in her decision of 17 June 2015 that the complainant had lost an opportunity to be reassigned to another position within the Organization because of a failure, in the reassignment process, to consider the complainant for one of two specified positions. This is not contested by WHO in its reply. The Tribunal’s case law establishes that, in such circumstances, a complainant is entitled to material damages (see, for example, Judgments 3756, consideration 14, 3755, consideration 20, 3754, consideration 21, 3753, considerations 15 and 17, and 3752, consideration 17). [...] At the time of the complainant’s termination of appointment, he had approximately five years remaining employment under his continuing appointment, was 55 years old and had served as an official of WHO for a little over 30 years. These factors influence the assessment of the material damages, particularly the fact that the complainant was some considerable time off retiring. The Tribunal assesses the material damages for this lost opportunity in the sum of 80,000 United States dollars.
Reference(s)
ILOAT Judgment(s): 3752, 3753, 3754, 3755, 3756
Keywords:
abolition of post; loss of opportunity; material damages; termination of employment;
Consideration 9
Extract:
An organisation which has restructured, abolished positions, and is in the process of trying to reassign staff members whose positions have been abolished is under a positive duty to communicate with them in a way that promotes the likelihood of reassignment (see, for example, Judgments 2902, consideration 14, 3439, consideration 9, and 3755, consideration 9). It is no answer to suggest that the staff member is under a duty to inform herself or himself and failed to do so. However, again, this is another manifestation of the flawed reassignment process by which the complainant was deprived of the opportunity of being reassigned.
Reference(s)
ILOAT Judgment(s): 2902, 3439, 3755
Keywords:
abolition of post; duty to inform; reassignment;
Judgment keywords
Keywords:
abolition of post; complaint allowed; permanent appointment; termination of employment;
Judgment 3917
125th Session, 2018
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his continuing appointment pursuant to the abolition of his post.
Judgment keywords
Keywords:
abolition of post; complaint allowed; permanent appointment; termination of employment;
Consideration 5
Extract:
[W]hile the Organization established a reassignment committee – the GRC – in order to reclassify the staff members whose posts had been abolished, there is no evidence that the Committee met with the complainant. The Tribunal’s case law has it that administrative bodies have the duty to explore all existing reassignment options with the person in question (see Judgments 2902, under 14, 3439, under 9, and 3755, under 9). In this case, the complainant had no opportunity to participate in the reassignment process. The Tribunal therefore considers that WHO breached its obligations.
Reference(s)
ILOAT Judgment(s): 2902, 3439, 3755
Keywords:
abolition of post; duty to inform; reassignment;
Consideration 6
Extract:
The Tribunal recalls that when an organization has to abolish a position occupied by a staff member holding a continuous appointment, it has a duty to do all that it can to reassign that person, as a matter of priority, to another post matching her or his abilities and grade. The staff member in question may therefore claim to be appointed to any vacant post which she or he is capable of filling in a competent manner, regardless of the qualifications of the other candidates (see Judgment 133). If the attempt to find such a post proves fruitless, it is up to the organisation, if the staff member concerned agrees, to try to place her or him in duties at a lower grade and to widen its search accordingly (see Judgments 1782, under 11, 2830, under 9, and 3755, under 6).
The written submissions show that the complainant’s qualifications and professional experience made him eligible for assignment to three vacant posts. The fact that numerous posts at AFRO were abolished is not in itself a valid reason for not reassigning the complainant.
Reference(s)
ILOAT Judgment(s): 133, 1782, 2830, 3755
Keywords:
abolition of post; duty of care; reorganisation;
Judgment 3916
125th Session, 2018
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his fixed-term appointment pursuant to the abolition of his post.
Judgment keywords
Keywords:
abolition of post; complaint allowed; fixed-term; termination of employment;
Consideration 6
Extract:
[T]he file shows that while WHO established a reassignment committee – namely, the Global Reassignment Committee – with a view to reassigning the staff members whose posts had been abolished, there is no evidence that the Committee met with the complainant. The Tribunal’s case law has it that administrative bodies have a duty to explore all existing reassignment options with the person in question (see Judgments 2902, under 14, 3439, under 9, and 3755, under 9). In this case, the complainant had no opportunity to participate in the reassignment process. The Tribunal therefore considers that the Organization breached its obligations.
Reference(s)
ILOAT Judgment(s): 2902, 3439, 3755
Keywords:
abolition of post; duty to inform; reassignment;
Consideration 11
Extract:
Pursuant to Staff Rule 1050.2, “[w]hen a post held by a staff member with a continuing appointment, or by a staff member who has served on a fixed-term appointment for a continuous and uninterrupted period of five years or more, is abolished or comes to an end, reasonable efforts shall be made to reassign the staff member occupying that post, in accordance with procedures established by the Director-General [...]”. In this case, it was therefore incumbent on the Organization to make every effort to reassign the complainant, who had been employed by WHO without interruption from 2004 to 2012, when his appointment was terminated. The Tribunal notes that by creating new posts to be filled solely through local recruitment, the Organization, through its own actions, limited the reassignment options of AFRO administrative officers, including the complainant, whose posts were abolished. In so doing, it restricted the opportunities for reassignment whereas it was incumbent on it to seek or expand them. WHO therefore failed to abide by its own rules.
Keywords:
abolition of post; patere legem; reassignment;
Judgment 3908
125th Session, 2018
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to abolish his post and terminate his appointment.
Considerations 16-19
Extract:
[T]he Tribunal has long recognised the right of an international organisation to restructure and abolish positions (see, for example, Judgment 2742, consideration 34). This will imperil the continuing employment of the occupants of those abolished positions. However a concomitant of that right to abolish positions is an obligation to deal fairly with the staff who occupy those abolished positions. That extends to finding, if they exist, other positions within the organisation for which those staff have the experience and qualifications. The Tribunal accepts that there may be other disqualifying criteria. One might be, in a particular set of circumstances, that the number of staff whose positions have been abolished exceeds the number of available positions. However the imprecise concept of “unsuitability” as assessed by a selection committee as if it were a competition for initial appointment, might not be enough to disqualify a staff member unless it can be demonstrated that there is a real and substantial reason why a staff member in an abolished position will not be able to perform the duties of the available position satisfactorily notwithstanding they have the required qualifications and experience. This would be all the more so, as is the case in these proceedings, where the functions of the new position reflect some of the functions of the position which is being abolished and there has been no material adverse assessment of the performance of the staff member in the performance of those functions in the abolished position.
[...]
The Tribunal is satisfied that the ICC did not take adequate steps to reassign the complainant after the abolition of his post. To reject his candidature for a number of available positions on the basis that he was not suitable as part of an assessment in a competitive selection process, falls short of what was required. There is no reason, discernible from the pleas, why the complainant could not have been reassigned or redeployed to one of the new positions to which some of the functions were assigned from his abolished position and in particular the Deputy Legal Counsel position discussed in the preceding consideration.
Reference(s)
ILOAT Judgment(s): 2742
Keywords:
abolition of post; organisation's duties; reassignment; reorganisation;
Judgment keywords
Keywords:
abolition of post; complaint allowed; fixed-term; termination of employment;
Judgment 3907
125th Session, 2018
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to abolish her post and terminate her fixed-term appointment.
Judgment keywords
Keywords:
abolition of post; complaint allowed; decision quashed; fixed-term; termination of employment;
Consideration 3
Extract:
Suffice it to say that decisions to abolish a post and terminate an appointment are separate and distinct decisions.
Keywords:
abolition of post; termination of employment;
Consideration 26
Extract:
In conclusion, pursuant to the Presidential Directive, the Principles and Procedures should have been promulgated by an Administrative Instruction or, arguably, by a Presidential Directive. As the promulgation of the Principles and Procedures by Information Circular was in violation of the Presidential Directive, they were without legal foundation and are, therefore, unlawful as are the decisions taken pursuant to the Principles and Procedures. It follows that the decisions to abolish the complainant’s position and to terminate the complainant’s appointment were also unlawful and will be set aside.
Keywords:
abolition of post; patere legem; publication;
Judgment 3905
125th Session, 2018
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the termination of his fixed-term appointment.
Consideration 15
Extract:
It is evident that, in its report of 22 February 2016, the Appeals Board viewed the notification of the abolition of the complainant’s position and the termination of his appointment in the letter of 16 June as the communication of a single decision. This was a fundamental error of law. Decisions to abolish a post and terminate an appointment are separate and distinct decisions.
Keywords:
abolition of post; internal appeals body; mistake of law; termination of employment;
Judgment 3904
125th Session, 2018
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the termination of his fixed-term appointment.
Judgment keywords
Keywords:
abolition of post; complaint allowed; decision quashed; fixed-term; termination of employment;
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