Judgment No. 4506
Decision
1. WIPO shall pay the complainant moral damages in the amount of 4,000 euros.
2. It shall pay him costs in the amount of 1,000 euros.
3. All other claims are dismissed.
Summary
The complainant challenges the length of the extension of appointment that was offered to him.
Judgment keywords
Keywords
complaint allowed; extension of contract; senior official
Consideration 4
Extract:
The Tribunal’s case law states that it is for the Organization to prove that whoever issues a decision is authorised to take that decision, either by virtue of a statutory provision, or by virtue of a lawful delegation by the person in whom such authority is vested under that provision (see Judgment 2028, considerations 8(3) and 11). Furthermore, the Tribunal’s case law recognizes that the decision of the executive head of an organization may be communicated to the official concerned, as is common practice, by means of a letter signed by the head of human resources management. However, it must be clear from the terms of that letter, or, at least, from consideration of the documents in the file, that the decision in question was indeed taken by the executive head himself (see Judgment 4291, consideration 17, and the case law cited therein).
In the present case, the 29 February 2016 letter offered no reference to a delegation of authority or that the decision was taken on behalf of the Director General. Moreover, the Organization has not provided any evidence that the Deputy Director of HRMD held a delegation of authority from the Director General, neither in general nor for this specific case. WIPO merely affirms in its reply: “The [c]omplainant argues that there is no evidence that the decision to extend his contract by two years was made by the Director General, as was required by the Staff Regulations and Rules. The Organization is perplexed by this assertion, and questions why the [c]omplainant would believe that the Director General would sign his name to a decision (that being, the impugned decision at issue in this [c]omplaint) that misrepresents his own prior actions (namely, taking the decision to extend the [c]omplainant’s contract by two years). Without further evidence, the Organization respectfully requests that the Tribunal disregard this assertion.” This argument clearly arises from a confusion between the formal requirements and the substantive requirements of an administrative decision. As the Tribunal said in Judgment 2558, at consideration 4: “Whether a decision is justified or not in substance, whoever takes the decision must in all cases make sure beforehand that he has the power to do so and, if not, refer the matter to the competent authority for a decision. The fact that this requirement was not complied with in the present case is all the more incomprehensible since the decision to be taken concerned the appointment of an official to a managerial post”. In the present case, the decision was likely to affect the running of a whole division of the Administration, as the complainant was the Director of the Copyright Infrastructure Division within the Copyright and Creative Industries Sector (CCIS). The Organization has not provided the Tribunal with a formal delegation by the Director General to the Deputy Director of HRMD, which would have entitled her to set the length of the contract extension. Thus, the Tribunal concludes that the 29 February 2016 decision was taken ultra vires.
Reference(s)
ILOAT Judgment(s): 2028, 2558, 4291
Keywords
delegated authority
Consideration 5
Extract:
The Tribunal’s case law states that, as long as the rules are neither amended nor repealed, the principle tu patere legem quam ipse fecisti requires the Organization to apply them (see Judgment 4310, consideration 9).
[A]n international organisation has a duty to comply with its own internal rules and to conduct its affairs in a way that allows its employees to rely on the fact that these will be followed (see Judgment 3758, consideration 15). As to the interpretation of that Regulation, in its relevant version, it must be recalled that according to the Tribunal’s case law the primary rule of interpretation is that words are to be given their obvious and ordinary meaning (see Judgment 1222, consideration 4; see also Judgment 4321, consideration 4). Where the text is clear and unambiguous (as it is in the present case), the Tribunal will apply it without reference to the preparatory work or the supposed intent of the lawmaker. Strict textual interpretation is an essential safeguard of the stability of the position in law and so of the Organisation’s efficiency (see Judgment 691, consideration 9).
Reference(s)
ILOAT Judgment(s): 691, 1222, 3758, 4310, 4321
Keywords
patere legem; interpretation of rules
Consideration 7
Extract:
The complainant, in theory, would be entitled to material damages for the loss of opportunity to have his contract extended more than two years. However, considering that on 1 October 2018 the complainant’s appointment was terminated for health reasons, the Tribunal finds that the loss of opportunity is not proven […].
Keywords
loss of opportunity
Consideration 10
Extract:
As to the claim regarding punitive and exemplary damages, the complainant has provided no evidence or analysis to demonstrate that there was bias, ill will, malice, bad faith or other improper purpose on which to base an award of exemplary damages (see, for example, Judgments 3419, consideration 8, and 4286, consideration 19). The claim is therefore unfounded.
Reference(s)
ILOAT Judgment(s): 3419, 4286
Keywords
punitive damages; exemplary damages
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