Judgment No. 2967
Decision
The complaint is dismissed.
Considerations 9-10
Extract:
[T]he complaint is directed to “the constructive abolition” of the complainant’s post, although reference is also made in the pleadings to its abolition, as such. The expression “constructive abolition” is, presumably, used by analogy with “constructive dismissal”, which ordinarily denotes a situation in which an organisation engages in conduct such as to indicate that it no longer considers itself bound by the fundamental terms of the employment contract with the consequence that, if the employee then terminates the contract, he or she is entitled to relief on the basis that the organisation wrongfully terminated the contract. Presumably, the term “constructive abolition” is used to suggest that the complainant has the same rights and entitlements as if her post had actually been abolished. However, the analogy with constructive dismissal is not complete, there being nothing to equate with conduct indicating a failure to be bound by the employment contract. That being so, it is necessary that the present matter be analysed in terms of the transfer of functions associated with a post, and not in terms of the abolition of a post. That is not to say that some considerations relevant to the abolition of a post are not also relevant to the transfer of functions.
It is well settled that “an international organisation necessarily has power to restructure some or all of its departments or units, including by the abolition of posts, the creation of new posts and the redeployment of staff” (see Judgments 2510, under 10, and 2856, under 9). The complainant contends that the decision to abolish the functions associated with her post and to assign them to a new post was not justified on objective grounds and was based on malice, prejudice, bias and ill will. Although the complainant contends otherwise, the reorganisation, so far as it concerned the functions previously performed by her and by Mr C., had a sound basis in terms of management and efficiency. There is no basis for implying any improper purpose by reason only of that reorganisation. And that is so even if, as the complainant contends, the reorganisation did not result in a reduction of staff in the department in which she worked prior to the reorganisation, or a decrease in its budget. Although these circumstances will ordinarily give rise to a presumption that there has been only a redistribution of functions and not a real abolition of posts, they cannot give rise to a presumption of improper purpose where, as here, the reorganisation was effected throughout the General Secretariat, and not merely in the department in which the complainant worked.
Reference(s)
ILOAT Judgment(s): 2510, 2856
Keywords
constructive dismissal
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