Judgment No. 4687
Decision
1. The impugned decision of 2 August 2019 is set aside as is the termination decision of 16 March 2018.
2. The complainant be paid an amount equivalent to nine months salary at the rate prevailing on 16 June 2018.
3. The complainant be paid 8,000 United States dollars costs.
4. All other claims are dismissed.
Summary
The complainant challenges the decision to terminate her appointment after she refused two reassignments.
Judgment keywords
Keywords
complaint allowed; transfer; reassignment; termination of employment
Consideration 5
Extract:
The general principles in the Tribunal’s case law concerning decisions to reassign staff have most recently been discussed in consideration 2 of Judgment 4595:
“Consistent precedent has it that an executive head of an international organization has wide discretionary powers to manage the affairs of the organization pursuant to the policy directives and its rules, and that such decisions are consequently subject to only limited review. The Tribunal will ascertain whether a transfer decision is taken in accordance with the relevant rules on competence, form or procedure; whether it rests upon a mistake of fact or law, or whether it amounts to abuse of authority. The Tribunal will not rule on the appropriateness of the decision as it will not substitute the organization’s view with its own (see, for example, Judgment 4427, under 2). An international organization must carefully take into account the interests and dignity of staff members when effecting a transfer to which the staff member concerned is opposed (see, for example, Judgment 4427, under 11). It is incumbent upon an international organization to prove that a procedure which it has put in place has been duly followed, particularly if the implementation thereof is disputed (see, for example, Judgment 3601, under 20). [...]
The Tribunal has also stated that every international organization is bound by a duty of care to treat its staff members with dignity and avoid causing them undue and unnecessary injury (see, for example, Judgment 4253, under 3). While the head of an international organization must take into account the organization’s interests as well as the staff member’s abilities and interests in the exercise of the discretion to transfer a staff member, in cases where the two are at odds, greater weight may be accorded by the decision-maker to the interests of the organization (see Judgment 2635, under 6).”
Reference(s)
ILOAT Judgment(s): 2635, 3601, 4253, 4427, 4595
Keywords
transfer; reassignment; judicial review
Consideration 8
Extract:
One legal issue presented for consideration by the pleas is whether the power to reassign an official to such a position is in any way conditioned or qualified in circumstances where a competition is on foot to fill the position. While it is not explicitly put this way by the complainant, it is the import of one of her pleas. There are a number of cases where the Tribunal has considered the direct appointment of a person to a position in circumstances where it denied the complainant “a right to compete” (see generally Judgments 4069, 3742, 3288 and 2959). By parity of reasoning, and notwithstanding the unequivocal bias just referred to, the decision to appoint the complainant, by way of reassignment, to the position in Cameroon deprived those who had entered the competition following the 27 December 2017 vacancy announcement of their right to compete and for each to have their candidature assessed on its merits. Deprivation of that right would involve a breach of WHO’s duty to act in good faith (see Judgments 4619, consideration 8, and 4618, consideration 8) to those who entered the competition. Consistent with the existence of this duty to act in good faith, the power to fill a position by reassignment, should not be interpreted as authorising reassignment
to a position when a competition is on foot to fill the very same position. There is an implied limitation on the exercise of the power to reassign. Thus, the decision of 12 January 2018 to reassign the complainant to the position in Cameroon was not lawful. Accordingly, the decision of 16 March 2018 to terminate her employment because she had refused the reassignment, was tainted by the unlawfulness of the reassignment decision and the decision to terminate should be set aside.
Reference(s)
ILOAT Judgment(s): 2959, 3288, 3742, 4069, 4618, 4619
Keywords
transfer; appointment; reassignment; termination of employment; selection procedure; appointment without competition
Consideration 10
Extract:
[I]t must be accepted that the complainant did lose the opportunity to remain in employment with WHO by virtue of her unlawful termination. For this she is entitled to a lump sum equivalent to the amount of nine times her last monthly salary, as indicated in her last payslip, without any statutory deductions.
Keywords
material injury; termination of employment
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