Judgment No. 4654
Decision
The complaint is dismissed.
Summary
The complainant seeks a redefinition of his employment relationship and the setting aside of the decision not to renew his employment contract.
Judgment keywords
Keywords
short-term; abolition of post; non-renewal of contract; conversion of contract; late appeal; redefinition of contract; complaint dismissed
Consideration 7
Extract:
[T]he Tribunal observes that, while the complainant requested that the contractual redefinition apply not only to the period during which he was employed under short-term contracts but also, subsidiarily, to the subsequent period, his claims on this point must also fail in light of this case law. Firstly, the period during which the complainant was employed under a temporary appointment did not in itself necessitate a redefinition, since he was lawfully employed during that period. Secondly, since the request for redefinition of his initial employment relationship in the form of short-term contracts is irreceivable, that request, even if well founded, could not in any event give rise to an entitlement to redefinition concerning the subsequent period.
Keywords
short-term; conversion of contract; late appeal; redefinition of contract
Consideration 10
Extract:
[T]he complainant maintains that the request for redefinition of his employment relationship cannot be considered as time-barred because it is “an action involving compensation”, its sole purpose being “to obtain redress for the injury caused” by “the fault committed by the Organization in applying the rules governing insecure and non-standard contracts in an abusive, aberrant manner” and that actions of this type are not, as such, subject to a time limit specified in WIPO’s rules. However, the Tribunal considers this manner of presenting the case contrived, because in a dispute involving a challenge to an individual decision, as here, compensation for injury arising from the alleged unlawfulness of that decision could only be granted as a consequence of it being set aside, which presupposes by definition that it has been challenged within the applicable time limit. Furthermore, endorsing this argument – which would, once again, involve departing from the approach taken in aforementioned Judgments 4159 and 4160 – would have the effect of authorising the Organization’s staff members in practice to evade the effects of the rules on time limits for filing appeals by allowing them to seek compensation at any time for injury caused to them by an individual decision, even though they did not challenge that decision in due time. Such a situation would scarcely be permissible having regard to the requirement of stability of legal relations which, as the Tribunal regularly points out in its case law, is the very justification for a time bar (see, for example, Judgment 3406, consideration 12, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 3406, 4159, 4160
Keywords
time bar; conversion of contract; late appeal; redefinition of contract
Consideration 13
Extract:
According to the Tribunal’s firm precedent based on the provisions of Article VII, paragraph 1, of its Statute, the fact that the complainant’s appeal was lodged out of time renders the claim in question irreceivable for failure to exhaust the internal means of redress available to the Organization’s staff members, which cannot be deemed to have been exhausted unless recourse has been had to them in compliance with the formal requirements and within the prescribed time limit (see Judgments 4160, consideration 13, and 4159, consideration 11, as well as, for example, Judgments 2888, consideration 9, 2326, consideration 6, and 2010, consideration 8).
Reference(s)
ILOAT Judgment(s): 2010, 2326, 2888, 4159, 4160
Keywords
failure to exhaust internal remedies; late appeal
Consideration 16
Extract:
It must be recalled that the Tribunal has consistently held that a decision not to renew the appointment of a staff member of an international organisation lies within the discretion of its executive head and is therefore 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 was based on a mistake of fact or of law, or if some essential fact was overlooked, or if clearly mistaken conclusions were drawn from the facts, or if there was abuse of authority (see, for example, Judgments 4172, consideration 5, 2148, consideration 23, and 1052, consideration 4).
Under Staff Regulation 4.16(e), “[n]o initial temporary appointment or any extension thereof shall carry with it any expectancy of, nor imply any right to, further extension”. Thus, while a staff member employed under a temporary appointment is not entitled to have her or his contract renewed upon expiry, the fact remains that, under the Tribunal’s case law applicable to contractual relationships generally, a decision not to renew such a contract must be based on objective, valid reasons, and not on arbitrary or irrational ones (see, in particular, Judgments 4495, consideration 15, 3769, consideration 7, 3353, consideration 15, and 1128, consideration 2).
Reference(s)
ILOAT Judgment(s): 1052, 1128, 2148, 3353, 3769, 4172, 4495
Keywords
fixed-term; non-renewal of contract
Consideration 16
Extract:
[T]he decision to separate the complainant from service was taken by WIPO on the grounds that, in its view, most of the requirements which the complainant’s employment had met had gradually disappeared, so there was no reason to renew his contract. While, as the Organization correctly observes, staff members with temporary appointments do not hold budget posts, the Tribunal considers that the disappearance of the functions performed by the holder of such an appointment is still an abolition of post within the meaning of the applicable case law, in any event in the case of functions that have been performed on a continuous basis. It follows that, although WIPO was not under an obligation to redeploy the complainant, it was nevertheless required, in view of the length of his employment relationship with the Organization, to explore with him other employment options prior to his separation, even though the measure at issue was not a termination of a current appointment (see, for comparable situations, Judgments 3159, consideration 20, and 2902, consideration 14).
Reference(s)
ILOAT Judgment(s): 2902, 3159
Keywords
fixed-term; separation from service; abolition of post; reassignment; non-renewal of contract; reclassification
Consideration 17
Extract:
[T]he [...] letter [...], which did contain a clear notification of that decision, expressly stated that the Legal Counsel was merely conveying the Director General’s decision. However, the Tribunal’s case law recognises that the decision of the executive head of an organisation may in fact be notified to the official concerned in a letter signed by another senior official, as is common practice (see, for example, Judgments 4291, consideration 17, 4139, consideration 6, 3352, consideration 7, and 2924, consideration 5).
Reference(s)
ILOAT Judgment(s): 2924, 3352, 4139, 4291
Keywords
delegated authority; notification
Consideration 22
Extract:
[A]s the Tribunal has repeatedly stated, abuse of authority may not be presumed and the burden of proof is on the party that pleads it (see, for example, Judgments 4283, consideration 9, 4081, consideration 19, 3543, consideration 20, and 2116, consideration 4(a)).
Reference(s)
ILOAT Judgment(s): 2116, 3543, 4081, 4283
Keywords
misuse of authority
Consideration 24
Extract:
Under the Tribunal’s case law, the amount of compensation that may be granted for a failure to comply with the requirement to deal with an internal appeal in a reasonable time ordinarily depends on two essential considerations, namely the length of the delay and the effect of the delay on the employee concerned (see, for example, Judgments 4635, consideration 8, 4178, consideration 15, 4100, consideration 7, and 3160, consideration 17).
Reference(s)
ILOAT Judgment(s): 3160, 4100, 4178, 4635
Keywords
time limit
Consideration 7
Extract:
[T]he case law thus established by Judgments 4159 and 4160 is fully applicable to the case of the complainant in the present proceedings, [...].
Indeed, it is clear that the complainant did not challenge, within the eight-week period available to him for this purpose under Staff Rule 11.1.1(b)(1), in the version applicable at the time, the decision of 19 November 2012 whereby he was granted the temporary appointment which he held from that date. Moreover, examination of that contract shows that the complainant signed it on 23 November 2012, explicitly stating that he “accept[ed] without reservation the temporary appointment offered to [him]”. The request for redefinition of his employment relationship that he subsequently submitted on 16 September 2016 with the aim of having his career reconstructed was therefore time-barred.
Reference(s)
ILOAT Judgment(s): 4159, 4160
Keywords
short-term; conversion of contract; late appeal; redefinition of contract
Consideration 18
Extract:
The complainant [...] submits that the decision not to renew his appointment is unlawful because proper notice and reasons were not given for the decision to abolish his post, on which the non-renewal decision must necessarily have been based.
However, while it is true that the Tribunal’s case law requires that a decision to abolish a post satisfy these conditions (see in particular Judgment 3041, consideration 8), they were indeed satisfied in this case.
Reference(s)
ILOAT Judgment(s): 3041
Keywords
non-renewal of contract; motivation
Consideration 19
Extract:
It is clear from the submissions that the functions of statistician that he performed in HRMD no longer met that department’s requirements at the time when the decisions were taken. The IT projects on which the complainant mostly worked – namely those in the “ERP portfolio” – were due to finish in June 2017. Furthermore, new applications meant that WIPO’s various administrative units could now compile their own human resources statistics rather than needing as a matter of course to consult a specialist in this field employed within HRMD, with the result that HRMD no longer needed to have a full-time statistician. Contrary to what the complainant submits, the job description for his post, as drawn up in 2008, had been rendered obsolete, given that the content of a document of this type does not confer an entitlement to the continued existence of the post to which it relates.
It thus appears that sufficient reasons underlay the abolition of the complainant’s post to justify that decision and accordingly that the disputed decision not to renew his appointment was itself based on valid, objective reasons, in compliance with the requirement recalled in consideration 16(b) [...].
Keywords
post description; abolition of post; outsourcing; motivation
Consideration 20
Extract:
The complainant [...] submits that WIPO did not provide him with sufficient assistance to allow him to be redeployed in a new post after his contract ended.
As stated in consideration 16(c) above, the Tribunal considers that the Organization was required to explore other employment options with the complainant before terminating his appointment. However, the submissions show that WIPO was aware of this duty and made every effort to comply with it. In the aforementioned memorandum of 27 March 2012, HRMD “encourage[d] [the complainant] to submit [his] application for all the vacancy notices already published or to be published which interest[ed] [him] and for which [he] consider[ed] that [he had] the necessary qualifications”, bearing in mind that the only legal way for the complainant to obtain a post filled by a fixed-term appointment was to be successful in a recruitment competition. A pressing invitation to apply for vacant posts – this time including posts that might be offered by employers other than WIPO – was again sent to the complainant in the memorandum of 12 August 2016, which also stated that “HRMD [would] increase its efforts to identify a post matching [his] qualifications”. That advice was repeated in the letter from the Legal Counsel of 15 November 2016. The complainant did in fact apply for 12 competitions to fill posts at WIPO between 2011 and 2016 and, although none of his applications proved successful, the Organization cannot be held responsible, especially as it had enabled him to receive individual support from HRMD’s Performance and Development Section and a training designed to facilitate his career transition.
In light of these various findings, the Tribunal considers that the plea that WIPO was negligent in this respect cannot be accepted (see, for a comparable situation, [...] Judgment 3159, considerations 21 to 23).
Reference(s)
ILOAT Judgment(s): 3159
Keywords
abolition of post; reassignment; reclassification
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