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Judgment No. 3868

Decision

The complaint is dismissed.

Summary

The complainant challenges the decision not to shortlist him for a position for which he had applied.

Judgment keywords

Keywords

selection procedure; complaint dismissed

Consideration 4

Extract:

The Tribunal considers it convenient to outline the relevant applicable legal framework at this juncture. The basic principle is that a decision concerning the selection of a successful applicant in a competition is a discretionary one and is subject to only limited review. It may be set aside only if it was taken without authority or in breach of a rule of form or of procedure, or if it was based on a mistake of fact or of law, or if some material fact was overlooked, or if there was abuse of authority, or if a clearly wrong conclusion was drawn from the evidence. Nevertheless, anyone who applies for a post to be filled by a selection process must have her or his application considered in good faith and in keeping with the basic rules of fair and open competition. An organisation must abide by its own rules on selection and, when the process proves to be flawed, the Tribunal can quash any resulting appointment, albeit on the understanding that the organisation must ensure that the successful candidate is shielded from any injury which may result from the cancellation of an appointment accepted in good faith (see Judgment 3652, under 7).

Reference(s)

ILOAT Judgment(s): 3652

Keywords

selection procedure

Consideration 6

Extract:

The following statement in Judgment 2313, under 5, provides context for discrimination or unequal treatment:
“The principle of equality requires that persons in like situations be treated alike and that persons in relevantly different situations be treated differently. In most cases involving allegations of unequal treatment, the critical question is whether there is a relevant difference warranting the different treatment involved. Even where there is a relevant difference, different treatment may breach the principle of equality if the different treatment is not appropriate and adapted to that difference.”

Keywords

equal treatment; discrimination; unequal treatment

Consideration 20

Extract:

The complainant submits, as another plea of procedural impropriety, that the JAB’s lack of independence and impartiality is evidenced in its failure to rule in a timely manner on his motions to expunge evidence or to exclude statements. He refers to an occasion on which he tried to move the JAB to seek responses from the WTO on his list of questions and requests for documents. This is elucidated in his e-mail to the JAB’s Secretary, dated 9 September 2014, in which the complainant acknowledged receipt of the WTO’s written reply to his appeal. The complainant drew the Secretary’s attention to some 30 questions and 25 requests for documents attached to his appeal. He noted the WTO’s submission that these were irrelevant to the matter and that the application was a fishing expedition. He stated that “albeit unwittingly”, the WTO had in its reply responded to eight of his questions, but that two of the documents which it provided were too heavily redacted to be of any probative value. He stated that there were some 22 questions and 25 requests for documents which still remained outstanding and highlighted three sets of questions and requests to which he required responses. First, he referred to his request for information concerning Sub-Saharan African representation in the Rules Division and stated that it was hard to understand why the WTO had provided information concerning the number of such staff members throughout the Secretariat rather than to provide information of such persons in the Rules Division.

Keywords

fishing expedition



 
Last updated: 17.02.2022 ^ top