Judgment No. 809
Decision
1. The impugned decisions are declared unlawful insofar as they put the complainant on an unclassified post and on compulsory special leave.
2. The Organization shall pay him 50,000 French francs in moral damages.
3. It shall pay him 100,000 French francs in costs.
4. His other claims are dismissed.
Consideration 14
Extract:
"The organization submits that it followed a practice introduced by the master standard for job classification which the International Civil Service Commission has approved and which applies throughout the United Nations system. But the master standard does not apply directly to the staff of the international organisations: it consists of mere guidelines which the organisations are free to introduce into their own regulations."
Keywords
general decision; icsc decision; practice; administrative instruction; rule of another organisation; staff regulations and rules; enforcement; post classification; binding character
Considerations 17 and 20
Extract:
The complainant "was made to take special leave at full pay. The material provision is [Unesco Staff] Rule 105.2(b): 'in exceptional circumstances staff members may be required to take special leave with pay, this measure being without prejudice to the rights of the staff member'. [...] The organization is not saying that no suitable post was vacant at the time the impugned decision was taken [...] nor does it maintain that it made the efforts it could have made to find a solution. All it does say is that the complainant never applied at the time for a single post. [...] On the broader issue, if the organization's intent was that the decision should be some sort of disciplinary sanction, then it would have perverted Rule 105.2(b)".
Reference(s)
Organization rules reference: UNESCO STAFF RULE 105.2(B)
Keywords
exception; organisation's duties; staff regulations and rules; assignment; special leave; staff member's duties; disciplinary measure; hidden disciplinary measure
Consideration 20
Extract:
"The Director-General's authority is not absolute and quite plainly he failed in this case to pay due regard to the complainant's qualifications and experience in picking P.5 posts."
Keywords
assignment; grade; professional experience; qualifications; degree; discretion; executive head; limits; disregard of essential fact
Order
Extract:
"The President may direct proceedings and even if not expressly so empowered may order suspension. Since a complainant may withdraw a complaint he may also apply for suspension. Such application will succeed unless the advantage to the complainant of suspending the proceedings is outweighed by the advantage to the defendant of pursuing them."
Keywords
procedure before the tribunal; competence; withdrawal of suit; president of the tribunal; order; order of suspension; staff member's interest; no provision; organisation's interest; request by a party; implied powers
Order
Extract:
"Continuation of the suspension might [...] needlessly hold up the proceedings and cause detriment to the defendant without serving the interests of the complainant. The application accordingly fails".
Keywords
president of the tribunal; order; order of suspension; extension of contract; refusal; request by a party
Consideration 20
Extract:
"[The] posts and the grade they carried were such that the decision was tantamount to a sanction. An organisation is bound to show due regard to the dignity and good name of its staff".
Keywords
moral injury; professional injury; organisation's duties; respect for dignity; assignment; transfer; grade; downgrading; post; hidden disciplinary measure
Consideration 17
Extract:
"Unless leave is granted at his own wish or he is on sick leave - which is just an incident of employment - a paid staff member is entitled to be given work to do that matches his grade."
Keywords
exception; refusal to assign work; assignment; grade; salary; leave; annual leave; sick leave; right
Consideration 16
Extract:
"The Director-General omitted to consult the Executive Board of Unesco before taking his decision, though Article 54 of the Board's Rules of procedure reads: 'The Director-General shall consult the members of the Executive Board with regard to the appointment or renewal of a contract of officials at D.1 and above whose posts come under the regular budget of the organization.'" The decision to appoint the complainant to an unclassified post is therefore tainted with a fatal flaw.
Reference(s)
Organization rules reference: ARTICLE 54 OF THE RULES OF PROCEDURE OF THE EXECUTIVE BOARD OF UNESCO
Keywords
organisation's duties; written rule; breach; assignment; professional category; appointment; extension of contract; consultation; executive head; executive body; flaw
Consideration 19
Extract:
In order to justify the imposition of special leave, it "must be shown [...] that use was not made of the special leave for any purpose extraneous to the Organization's interests and that the arrangement was a reasonable though not necessarily the only reasonable way out of the dilemma."
Keywords
organisation's duties; special leave; organisation's interest; condition; purpose
Consideration 5
Extract:
The letter goes on to speak of a "decision" to have the complainant perform other duties. The word "decision" denotes not mere intent but a positive act which was of legal effect. Though the decision was incomplete because the nature of the new post - an essential element - was not stated, the letter made it known to the complainant that there was no question of keeping him on in the post he then held.
Keywords
decision; transfer
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