Judgment No. 3322
Decision
1. The decision of the Director-General of the International Labour Office of 15 September 2011 and that of 4 February 2011 are set aside.
2. The Organization shall pay the complainant moral damages in the amount of 10,000 Swiss francs.
3. It shall also pay her 1,000 francs in costs.
4. All other claims are dismissed.
Summary
The complainant challenges the Director-General’s decision not to grant her personal promotion.
Judgment keywords
Keywords
complaint allowed; decision quashed; personal promotion
Considerations 6-8
Extract:
[T]he complainant raises what is plainly a well-founded objection to the lawfulness of this circular.
Barring the application of a provision of the Staff Regulations by means of a mere circular constitutes a gross breach of the hierarchy of rules governing the officials of the Organization, and the Director of the Human Resources Development Department clearly had no authority to adopt a measure with such a purpose.
The ILO submits that in Judgments 2833, 3032 and 3077 the Tribunal already “accepted the lawfulness of the amendment of a provision of the Staff Regulations by a circular”. This astonishing contention is, however, based on a radical misinterpretation of the case law thus cited. In these judgments, the Tribunal had occasion to rule on the application of the provisions of Circular No. 652, Series 6, of 12 January 2005, which exempted internal candidates for posts to be filled by competition from the assessment referred to in Annex I to the Staff Regulations. The Tribunal considered that it was reasonable to construe the provisions of that annex as permitting a departure from the Assessment Centre’s evaluation procedure as, by definition, these candidates’ suitability for a post in the International Labour Office is already known. It cannot be inferred from this conclusion that the Tribunal accepts that a circular may lawfully disregard a provision of the Staff Regulations, let alone amend it, or suspend its application.
The ILO endeavours to argue that Article 6.8.2, paragraph 4, itself permits – or, as it states in its submissions, permitted “at the time when this provision was in force” – exceptions to the rule making personal promotion subject to the completion of a posting in the field. In this connection, it emphasises that, as is clearer from the English version of the paragraph in question, this condition is not meant to apply systematically in every case.
Making an “exception” to a rule cannot, however, consist in simply suspending its application, even for a theoretically temporary period, as Circular No. 625 did.
Reference(s)
ILOAT Judgment(s): 2833, 3032, 3077
Keywords
precedence of rules
Consideration 4
Extract:
As the Tribunal has already had occasion to find in Judgment 3063 concerning the complainant’s complaint directed against the outcome of the 2006 exercise, by its very nature a decision regarding personal promotion lies at the discretion of the executive head of an international organisation and is therefore subject to only limited review. For this reason, it may be quashed only if it was taken without authority, or in breach of a rule of form or of procedure, or if it rested on an error of fact or of law, or if some essential fact was overlooked, or if clearly mistaken conclusions were drawn from the evidence, or if there was abuse of authority (see, for example, Judgments 1815, under 3, 2668, under 11, or 3084, under 13).
Reference(s)
ILOAT Judgment(s): 1815, 2668, 3063, 3084
Keywords
personal promotion; judicial review
|
