Judgment No. 4584
Decision
The complaint is dismissed.
Summary
The complainant seeks the cancellation of the competition organised to fill the grade P.4 post of programme coordinator that he had held in the ITU Regional Office for Africa until his retirement.
Judgment keywords
Keywords
competition; selection procedure; complaint dismissed
Consideration 2
Extract:
In a complaint filed on 9 August 2022, consisting of an application for interpretation of Judgment 4567, delivered in public on 6 July 2022, in which the Tribunal dismissed an application for interpretation of Judgment 4370, the complainant sought the recusal, in all cases which concerned him, of the judge presiding over the panel charged with hearing and determining the present complaint on the grounds that the judge had presided over the panels that had dismissed the complainant’s previous complaints, had proposed that some of those complaints be examined under the summary procedure provided for in Article 7 of the Rules of the Tribunal, and had been involved in creating case law that went against the complainant’s interests.
Ordinarily, except in cases of necessity, a judge will not be involved in adjudicating a case if there is a reasonable apprehension that she or he will not take a completely objective view owing to a risk of a lack of impartiality in her or his determination. In the present case, the complainant’s application for recusal does not refer to any fact substantiating the existence of such a situation. The complainant’s submissions in this respect do not rest on any specific evidence that might suggest bias against him when the cases in question were adjudicated. The mere fact that a complainant is unsuccessful in proceedings before a panel in which a judge participated cannot alone warrant the recusal of that judge in subsequent proceedings involving the same complainant (see Judgments 4520, consideration 1, or 110, consideration 1). The same applies to a situation in which a judge, in her or his capacity as President or Vice-President of the Tribunal, has taken decisions unfavourable to the complainant or in which that judge has participated in creating case law contradicting the complainant’s arguments in a complaint. In these circumstances, the application for recusal cannot be granted. Indeed, it must be emphasised that a judge has a duty to hear and determine a case allocated to her or him, and a decision to recuse which was not properly founded would constitute a breach of that duty (see aforementioned Judgment 4520, consideration 1).
Reference(s)
ILOAT Judgment(s): 110, 4370, 4520, 4567
Keywords
recusal of a judge
Consideration 4
Extract:
[The complainant] contends that the request for reconsideration he had initially lodged [...] did not receive a reply from the Secretary-General within the period of 45 days specified [...]. According to ITU’s explanations on this point, a decision on the request for reconsideration had in fact been taken but owing to an unfortunate administrative error had been sent to the complainant’s old work email address, meaning that the complainant, who no longer had access to that address, could not be aware of it. That error is plainly regrettable, but the Tribunal notes that, under Staff Rule 11.1.3(7)(b)(ii), a staff member who submits a request for reconsideration may, if she or he does not receive a reply to that request within the prescribed time limit, submit an appeal to the Appeal Board, as the complainant did in this case. Moreover, it is not disputed that ITU forwarded the decision rejecting the complainant’s request for reconsideration and the appended documents to him during the appeal procedure before the Appeal Board and that he had the opportunity to comment on those documents in that procedure. In these circumstances, the Tribunal considers that the failure to provide proper notification of the decision in question did not, in the present case, in fact breach the complainant’s right of appeal nor in consequence render the final decision taken at the end of the internal appeal procedure unlawful.
Keywords
time limit; disclosure of evidence; notification
Consideration 5
Extract:
[I]t must be reiterated that, under the Tribunal’s settled case law, a staff appointment by an international organisation is a decision that lies within the discretion of its executive head and, for that reason, is subject only to 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 if it was based on a mistake of fact or of law, or if some material fact was overlooked, or if there was abuse of authority, or if a clearly wrong conclusion was drawn from the evidence (see, in particular, Judgments 4408, consideration 2, 4153, consideration 2, 3188, consideration 8, or 2040, consideration 5). The Tribunal will not replace the organisation’s assessment with its own in this matter (see, in particular, Judgments 4100, consideration 5, 3537, consideration 10, 2833, consideration 10(b), or 2762, consideration 17). Furthermore, where an appointment is made on the basis of a selection among candidates for a post, a complainant seeking to have the appointment set aside must demonstrate that there was a serious defect in the selection process which impacted on the outcome of the competition (see, for example, Judgments 4524, consideration 8, 4208, consideration 3, 4147, consideration 9, or 4023, consideration 2). In particular, it is not enough simply to assert that one is better qualified for the post in question than the selected candidate (see, for example, Judgments 4467, consideration 2, 4001, consideration 4, 3669, consideration 4, or 1827, consideration 6).
Reference(s)
ILOAT Judgment(s): 1827, 2040, 2762, 2833, 3188, 3537, 3669, 4001, 4023, 4100, 4147, 4153, 4208, 4408, 4467, 4524
Keywords
appointment; competition; selection procedure; role of the tribunal
Consideration 16
Extract:
As the Tribunal has repeatedly stated in its case law, however, allegations of bias can only be upheld if they are supported by evidence (see, for example, Judgments 4408, consideration 22, 4099, consideration 11, 3914, consideration 7, 3380, consideration 9, or 1775, consideration 7).
Reference(s)
ILOAT Judgment(s): 1775, 3380, 3914, 4099, 4408
Keywords
personal prejudice
Consideration 17
Extract:
[T]he mere fact that a staff member casts doubt on the impartiality of managers who have participated in taking a decision unfavourable to her or him is not sufficient, if the accusation is unwarranted, to prove that a conflict of interest exists.
Keywords
conflict of interest
Consideration 20
Extract:
It should be noted [...] that the request for an investigation to be ordered with a view to the possible imposition of disciplinary penalties on particular staff members lies outside the jurisdiction of the Tribunal, whose role is not, in any event, to issue orders of that kind (see, for example, Judgments 4439, consideration 4, 4291, consideration 10, or 3858, consideration 7).
Reference(s)
ILOAT Judgment(s): 3858, 4291, 4439
Keywords
competence of tribunal; request to subject someone to disciplinary proceedings
Consideration 4
Extract:
[T]he complainant argues that [the] final decision was not communicated to him, as required under the combined provisions of Staff Rule 11.1.3(7)(i) and Staff Rule 11.1.4, within the time limit of 205 days from the date of submission of his appeal, as it was not communicated until 209 days afterwards. That is factually correct, and it bears noting that the delay was specifically attributable, in this case, to the Secretary-General’s failure to observe the 45-day time limit allowed for him to take a decision on the appeal after receipt of the Appeal Board’s report. However, time limits of this kind are plainly not intended to have the effect of nullifying a decision taken after their expiry. Their non-observance does not therefore render such decisions unlawful and, where that non-observance is wrongful, it may only entitle the staff member concerned to compensation if it causes injury to her or him (see, for example, Judgments 4408, considerations 5 and 6, or 2885, consideration 14). In the present case, the evidence does not in any event show that the failure to observe the time limit by just four days caused the complainant identifiable injury.
Keywords
time limit; delay
Consideration 11
Extract:
[T]he assessment of candidates in a selection procedure is independent of any assessment that might have been made in previous competitions [...].
Keywords
selection procedure
|
