Judgment No. 4662
Decision
The complaint is dismissed.
Summary
The complainant contests the Secretary General’s decision to reject her application for voluntary departure and her claim for compensation for “legitimate resignation”.
Judgment keywords
Keywords
agreed termination; complaint dismissed
Consideration 13
Extract:
As regards the alleged breach of her right to an effective internal appeal due to a lack of impartiality on the part of the Joint Appeals Committee, the Tribunal observes that the complainant’s submissions on this point refer mainly to the fact that the member representing the staff did not issue a dissenting opinion in the face of the numerous egregious flaws in the process before the Committee. However, settled case law has it that the complainant bears the burden of proving allegations of lack of impartiality and, in this case, the complainant clearly does not adduce the requisite proof. Mere suspicions and allegations unsupported by tangible evidence are insufficient (see Judgment 4553, consideration 7).
Reference(s)
ILOAT Judgment(s): 4553
Keywords
internal appeals body; burden of proof; impartiality
Consideration 15
Extract:
[A]s the Tribunal has consistently held, “when the executive head of an organisation adopts the recommendations of an internal appeal body, she or he is under no obligation to give any further reasons in his or her decision than those given by the appeal body itself” (see Judgment 4307, consideration 15). In the present case, in the impugned decision, the Secretary General refers to the detailed reasons and explanations set out in the unanimous opinion of the Joint Appeal Committee and summarises them, emphasising the salient points before stating his conclusions. Again, the reasons provided for the decision were sufficiently explicit to enable the complainant to take an informed decision accordingly, as her submissions show, and to allow the Tribunal to exercise its power of review in the present judgment (see Judgment 4081, consideration 5).
Reference(s)
ILOAT Judgment(s): 4081, 4307
Keywords
motivation of final decision
Consideration 22
Extract:
The complainant may well regret the fact that she was not able to participate in the Organization’s voluntary departure programme but, as Interpol’s bad faith or malice has not been proven, she was not entitled to do so. It is clear from the complainant’s application that she was keen to leave the Organization for personal and family-related reasons and therefore to terminate her appointment. Although she had taken that decision, she was not entitled to a voluntary resignation under the favourable terms of the programme. The Organization’s refusal is not sufficient to categorise her voluntary resignation as a constructive dismissal and does not allow her to refer to the provisions of the Staff Manual concerning legitimate resignation, which have in any case been repealed, when she did not rely on them at the prescribed time and on the prescribed terms.
Keywords
resignation; agreed termination; constructive dismissal
Consideration 6
Extract:
With regard to her first plea concerning the unlawfulness of the decision refusing her application for voluntary departure owing to flaws in the procedure before the Workforce Mobility Committee, the complainant firstly submits that the Committee was not composed in compliance with Article 2.1 of Staff Instruction No. 2015.26, in that only three of the five members specified took part.
However, according to the evidence in the file, in July 2018 the Executive Director, Police Services (EDPS), also held the position of Executive Director for Strategy and Governance (EDSG), and the position of Assistant Director of Finance and Procurement (EDRM/FSSM/FIN) was vacant and so supervised by the Executive Director for Resource Management (EDRM). Both these directors were members of the Committee. The complainant does not effectively contest this fact, which explains why the Committee sat in the composition in question.
This argument will therefore be rejected.
Keywords
composition of the internal appeals body
Consideration 9
Extract:
[I]n assessing the complainant’s application, the Committee and the Secretary General were entitled to take into account the Organization’s interests and the consequences of the complainant’s voluntary departure. The reasons given for rejecting her application – firstly, to await the arrival of a new executive director to assess the needs of the executive directorate, and secondly, because of the recent assignment of additional staff to her unit to meet human resources requirements – could be justified in terms of the Organization’s interests. It is not for the Tribunal to substitute its assessment for that of the Organization in such a case.
Keywords
judicial review; organisation's interest; motivation
Consideration 11
Extract:
[W]hile it is true that the complainant received belatedly the opinion of the Workforce Mobility Committee which had given its view on her application, the submissions and documents in the file show that the Committee was mindful of the complainant’s grievances on this point and forwarded the opinion to her so it could receive her comments, which the complainant was able to submit to the Committee before it delivered its recommendation. The complainant was therefore able to comment on the relevant issues relating to the decisions that were the subject of her internal appeal and, in particular, on the Organization’s arguments (see Judgment 4408, consideration 4). The complainant’s allegations of failure to observe the adversarial principle have not been proven.
Reference(s)
ILOAT Judgment(s): 4408
Keywords
disclosure of evidence; adversarial proceedings; right to be heard
Consideration 18
Extract:
As regards the complainant’s allegation that the Organization acted maliciously, under false pretences and with the aim of taking advantage of the situation to her detriment, it is settled case law that the complainant bears the burden of proving malice and bad faith. While the complainant’s disappointment at the response received is understandable, allegations of this nature nevertheless require proof that goes beyond mere conjecture or speculation. In the absence of any evidence, this allegation must be dismissed.
Keywords
burden of proof; bad faith; malice
Consideration 20
Extract:
The complainant maintains that, despite the removal of the provisions in question from the legal system, she could exercise an acquired right to have them applied because they were in force when she was recruited.
In Judgment 4593, consideration 10, the Tribunal recalled that, under its case law on acquired rights:
“[...] the amendment of a rule governing an official’s situation to her or his detriment constitutes a breach of an acquired right only when the structure of the contract of appointment is disturbed or there is impairment of a fundamental and essential term of appointment in consideration of which the official accepted appointment, or which subsequently induced her or him to stay on. In order for there to be a breach of an acquired right, the amendment made must therefore relate to a fundamental and essential term of employment (see, for example, Judgments 4398, consideration 11, 4381, consideration 13 and 14, and 3074, consideration 16, and the case law cited in those judgments).”
The Tribunal further stated the following in Judgment 4580, consideration 11:
“It is recalled that the staff members of international organisations are not entitled to have all the conditions of employment laid down in the provisions of the staff rules and regulations in force at the time of their recruitment applied to them throughout their career. Most of those conditions can be altered during an employment relationship as a result of amendments to those provisions (see, for example, Judgments 4465, consideration 8, 3876, consideration 7, and 3074, consideration 15).”
However, in her submissions, apart from asserting that she had an acquired right, the complainant does not state how the removal of Rule A.3.3(1)(c) from Appendix 3 to the Staff Manual has upset the balance of contractual obligations or altered an essential and fundamental condition of employment in consideration of which she accepted her appointment or which induced her to stay on.
In light of the case law referred to above and the evidence in the file, the Tribunal finds that the conditions that would allow the existence of an acquired right to be established are clearly not satisfied in this case.
Reference(s)
ILOAT Judgment(s): 3074, 3074, 3876, 4381, 4398, 4465, 4580, 4593
Keywords
acquired right
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