Judgment No. 4684
Decision
1. UNESCO shall pay the complainant moral damages of 8,000 euros for injury under all heads.
2. It shall also pay her 1,000 euros in costs.
3. All other claims are dismissed.
Summary
The complainant challenges the classification exercise for her post and seeks compensation in this regard.
Judgment keywords
Keywords
complaint allowed; post classification
Consideration 3
Extract:
With regard to the complainant’s request for disclosure of the full desk audit report for her post, she herself acknowledges in her submissions that the Organization has now acceded to her requests in this respect. Therefore, since the alleged flaw has been remedied through the provision of the relevant documents to the complainant in the proceedings before the Tribunal, the complaint has become moot on this point.
Keywords
disclosure of evidence; claim moot
Consideration 4
Extract:
According to settled case law, the grounds on which the Tribunal will intervene in a decision concerning the classification of a post are limited. In Judgment 4437, consideration 2, the Tribunal stated the following with regard to its limited power of review in this area:
“The Tribunal recalls that the evaluation and classification of a post is based on technical data. Thus, under its case law, the grounds on which the classification of a post may be reviewed are limited and ordinarily a classification decision would only be set aside if it was taken without authority, was made in breach of the rules of form or procedure, was based on an error of fact or law, overlooked an essential fact, was tainted with abuse of authority or if a truly mistaken conclusion was drawn from the facts. This is because the classification of posts involves the exercise of value judgements as to the nature and extent of the duties and responsibilities of the posts and it is not the Tribunal’s role to undertake this process of evaluation. The grading of posts is a matter within the discretion of the executive head of the organisation (or the person acting on her or his behalf) (see, for example, Judgment 4221, consideration 11, and the case law cited therein).” (See also Judgment 4502, consideration 6.)
Reference(s)
ILOAT Judgment(s): 4221, 4437, 4502
Keywords
post classification; judicial review
Considerations 5-7
Extract:
Turning to the irregularity on which the complainant relies in relation to the proceedings before the Appeals Board, on the ground that there were two successive versions of the alternative opinion that appeared in the Board’s report, the Tribunal is astonished to note that, aside from the fact that the “alternative” opinion was in fact that of the majority of the Board, there were indeed two versions signed on different dates, being 9 May and 22 May 2019 respectively, by the three members of the Board who subscribed to it.
Other than mentioning that the Secretary of the Appeals Board forwarded the second report with “corr.” added to the reference, the Organization has provided no explanation for this, asserting only that the second version was merely intended to correct the first. [...]
In the absence of any explanation in the file concerning these different versions which dealt with the very question of the irregularities which allegedly tainted the Director-General’s decision, it is easy to understand the complainant’s confusion. What is more, in the impugned decision, the Board’s report to which the Director-General referred is the one which included the second version of the alternative opinion. That version merely attempts to explain why the procedure followed was correct, without commenting on the previous statement of three members of the Board that they “[found] few irregularities to taint the Director-General’s decision”, which implied that there were some.
Even if the second version of the alternative opinion of the Appeals Board of 22 May 2019 is valid because it was duly signed by the three Board members who subscribed to it and by the Secretary who forwarded it with the reference “corr.”, the Tribunal nonetheless agrees, in view of the unusual circumstances revealed by the evidence, that the complainant suffered moral injury as a result of the confusion caused by the anomalies described above, which will be fairly redressed by awarding her compensation in the amount of 3,000 euros.
Keywords
due process
Consideration 10
Extract:
The Tribunal considers that these successive delays in updating the complainant’s job description are indeed unreasonable and that the Organization thereby breached its duty of care and its duty to exercise diligence with regard to these other failings. The effect was to unduly prolong the updating exercise over a period of almost eight years and inevitably caused the complainant moral injury, which may be fairly redressed by awarding her compensation in the amount of 3,000 euros.
Keywords
time limit; duty of care
Consideration 11
Extract:
As for the excessive length of the internal appeals procedure, on which the complainant focuses in her rejoinder and her additional submissions, the Tribunal considersit appropriate, first of all, to dismiss the Organization’s argument that this claim is irreceivable asit was only made in the context of the rejoinder. The Tribunal notes that, in her complaint, the complainant criticised the overall period of seven years that elapsed between her initial request for an updated job description and the final decision of the Director-General of 7 August 2019 following the Appeals Board’s report. As the period referred to includes the duration of the internal appeals procedure, it can be assumed that the complainant, in so doing, intended to challenge that duration as part of her damages claim for moral injury sustained as a result of the unreasonable time taken to reach a decision on her request.
Keywords
new claim
Consideration 12
Extract:
It bears recalling that international civil servants are entitled to expect their cases to be examined by the internal appeals bodies within a reasonable time and failure to deal with them expeditiously constitutes a fault for which the organisation concerned will be held accountable (see, for example, Judgment 3510, consideration 24, or Judgment 2116, consideration 11). Under the Tribunal’s case law, the amount of compensation liable to be granted under this head ordinarily depends on two essential considerations, namely the length of the delay and the effect of the delay on the employee concerned (see, for example, Judgments 4635, consideration 8, 4178, consideration 15, 4100, consideration 7, or 3160, consideration 17).
In the present case, a period of 22 months elapsed between the complainant filing her detailed appeal before the Appeals Board on 30 October 2017 and the Director-General delivering her final decision on 7 August 2019. That length of time is excessive having regard to the nature and the circumstances of the case in hand. As a result, the complainant has suffered moral injury, which will be fairly redressed by awarding her compensation of 2,000 euros under this head.
Reference(s)
ILOAT Judgment(s): 2116, 3160, 3510, 4100, 4178
Keywords
moral injury; delay in internal procedure
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