Judgment No. 2474
Decision
1. The Director-General's decisions of 23 January 2004 and 10 March 2004 rejecting the recommendations of the Joint Panel with respect to the complainant's promotion to P.5 and the payment of his legal costs relating to his grievance with respect to the production of documents, respectively, are set aside.
2. The Director-General is to promote the complainant to P.5 with effect from 1 April 2003.
3. The Organization shall pay the complainant 3,000 Swiss francs for legal costs associated with his grievance before the Joint Panel relating to the production of documents.
4. It shall pay the complainant moral damages in the sum of 30,000 francs.
5. It shall also pay him the costs of these proceedings in the sum of 10,000 francs.
6. The claims are otherwise dismissed.
Consideration 9
Extract:
The failure of the complainant’s legal representative to inform the Organization and, seemingly, the Joint Panel of the filing of the first complaint with the Tribunal is, at the very least, contrary to ordinary standards of professional conduct.
Keywords
counsel
Consideration 9
Extract:
[T]he pursuit of internal appeal procedures when a complaint has already been filed with the Tribunal will ordinarily constitute an implied withdrawal of the complaint.
Keywords
internal appeal; withdrawal of suit
Consideration 10
Extract:
The second complaint filed with the Tribunal is, in one sense, inconsistent with the first complaint. However, the subject of the second complaint is the issue identified by the Joint Panel, namely, whether the complainant was entitled to promotion to P.5 notwithstanding that the competition had been cancelled and is, thus, more accurately identified as an alternative claim. That being so it does not constitute an abuse of process. Nor is the third complaint in any way inconsistent with either of the other two complaints filed with the Tribunal. Accordingly, it is likewise not an abuse of process. Both the second and third complaints are, thus, also receivable.
Keywords
abuse of process
Consideration 12
Extract:
Although the Director-General’s decision to cancel the competition and to vacate the post to which the complainant was appointed must stand, it does not follow that the first complaint should be dismissed in its entirety. An international organisation has a duty to act in good faith towards its employees and to protect their dignity. Unfortunately, the circumstances surrounding the Director-General’s decision show scant regard for the dignity of the complainant.
Keywords
cause of action; respect for dignity; senior official
Consideration 23
Extract:
The Director-General’s decision to cancel the competition and to vacate the post to which the complainant was appointed must stand only because the requirement of experience at the international level is to be interpreted in the manner indicated above. Clearly, as is indicated in the Organization’s reply on the first complaint, different people took different views as to that requirement which, standing alone, lacked precise meaning. The failure to take timely steps to clarify the meaning of that requirement, to specify in what manner the complainant lacked the requisite experience, to provide documents and information in regard to the decision or to follow the procedures in relation to the provision of those documents and information, demonstrates a serious disregard for the complainant’s dignity and a failure to act in good faith towards him. Accordingly, he is entitled to moral damages as claimed in the first complaint. The Organization’s suggestion that that claim for moral damages is irreceivable because it was made neither when the complainant sought further information and reconsideration of the decision on 15 April 2003 nor when he lodged his grievance with respect to the decision on 28 October of that year must be rejected. The claim was made at the first real opportunity, namely, when the first complaint was filed with the Tribunal in September 2003. Moral damages should be assessed at 30,000 Swiss francs.
Keywords
moral injury; good faith; respect for dignity; selection procedure
Consideration 24
Extract:
Given the Organization’s failure to comply with its own procedures for the provision of documents and information regarding a decision affecting the complainant, it was entirely reasonable for him to seek legal representation in the proceedings before the Joint Panel. Moreover, given the absence of any precise reason for the decision to set aside the competition and the failure of the Organization to follow its own procedures, the decision of 10 March 2004 to reject the Joint Panel’s recommendation with respect to the payment of the costs of legal representation cannot be sustained on the basis that the complainant did not specifically identify the documents to which he required access. Accordingly, the Director-General’s decision of 10 March 2004 not to accept the recommendation of the Joint Panel is set aside. Instead, it will be ordered that costs of the proceedings before the Joint Panel be paid in accordance with its recommendation.
Keywords
costs for internal appeal procedure
Considerations 25, 27-28
Extract:
[T]he complainant was appointed Head of the Spanish Unit on the basis that he would be promoted to P.5 after one year’s satisfactory service. The precise terms of the minute of 26 March 2002 recording this understanding are:
“On the recommendation of the Director-General, [the complainant] would be promoted to P.5 on completion of a satisfactory performance appraisal after one year in the post.”
[...]
In essence, the Organization is contending that it is relieved of its promise because, although the complainant performed all the functions and the duties of the post in question and performed them satisfactorily for one year, he did not perform them “in the post”. That is because the effect of the decision of 10 April 2003 was that, as a matter of law he was never appointed to that post. The Organization was responsible for appointing the complainant to the post. It is also responsible for the consequences of its decision in that regard.
Because the setting aside of the complainant’s appointment was the direct consequence of its own unlawful actions, the Organization cannot now be heard to say that the conditions which were attached to its promise and which were performed in substance and in fact, were not performed in law. Accordingly, the complainant is entitled to a promotion to P.5 [...].
Keywords
promise
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