Judgment No. 4690
Decision
1. The impugned decision of 20 May 2019 is set aside.
2. The FAO shall pay the complainant 37,590 United States dollars, plus interest, as material damages.
3. The FAO shall pay the complainant 8,000 euros costs.
4. All other claims are dismissed.
Summary
The complainant challenges the decision to uphold his transfer to Budapest.
Judgment keywords
Keywords
complaint allowed; transfer
Consideration 3
Extract:
The complainant has requested an oral hearing. However, the written pleadings and the documents produced by the parties are sufficiently detailed to enable the Tribunal to determine the issues raised in these proceedings. It is therefore unnecessary to grant this request.
Keywords
oral proceedings
Considerations 6-7
Extract:
The requirement that the potential transferee be provided with reasons for the transfer is plainly linked to the right to present possible observations before the decision to transfer is perfected. The complainant contends no reasons were given. This is challenged by the FAO which says, […] in substance, three reasons were given. The first was that this transfer to the Budapest duty station accommodated the complainant’s medical circumstances which had been evaluated by the FAO’s medical service. The second was that the post was commensurate with the complainant’s professional qualifications and the third was that the transfer was in the interests of the Organization.
The second and third reasons were expressed at a high level of generality as reasons for nominating Budapest as the duty station and, particularly given the requirement in FAO Manual paragraph 311.4.11 to take into account the requirements of the work programme, did not provide the detail the provision implies. At the very least, that matter had to be expressly addressed in the reasons given for the transfer. Moreover, to say that the Budapest duty station accommodated the complainant’s medical circumstances is not, in isolation, a reason for transferring him there unless it is suggested, which it is not, that the Budapest duty station was the only duty station to which the complainant could have been transferred and which accommodated his medical circumstances. The Organization failed to do what was required of it, namely to provide him with reasons.
Keywords
transfer; motivation
Considerations 12-13
Extract:
It may be accepted that the Tribunal has recognised, at least in relation to certain classes of cases, that evidence of earlier conduct which precedes the conduct actually the subject matter of the complaint, may be relied on to prove the true character of the later and impugned conduct. An obvious example is a case involving an allegation of harassment. The Tribunal has accepted that in such a case the evidence of earlier conduct is admissible (see Judgments 4601, consideration 8, 4288, consideration 3, 4286, consideration 17, 4253, consideration 5, and 4233, consideration 3). But the purpose of that evidence is to enable the correct characterization, if it is in issue, of the impugned conduct. The same can happen in cases where bias and prejudice are alleged (see Judgment 3669, consideration 2).
There is probably no overarching principle which will determine the admissibility of evidence concerning earlier events in every case. At least in a case such as the present, the question of admissibility should be determined by reference to the specific facts of the case.
Reference(s)
ILOAT Judgment(s): 3669, 4233, 4253, 4286, 4288, 4601
Keywords
evidence; bias; harassment; prejudice
Consideration 16
Extract:
The complainant has been represented by experienced counsel who has attested to the complainant’s pleas. It is true that the complainant seeks, but only by way of relief nominated in the complaint form and at the conclusion of the brief by way of summary, 300,000 euros as exemplary damages. In general, these damages are meant to sanction bias, ill will, malice, bad faith, and other improper purpose (see, for example, Judgment 3092, consideration 16). However, in his pleas (both in his brief and rejoinder) the complainant makes no submission at all about exemplary damages, and he confines his submissions to moral damages. The two are different. Moral damages are to compensate for a moral injury. Exemplary damages are awarded as a sanction for the defendant organisation’s conduct. In the absence of pleas expressly addressing a claim for exemplary damages, it would be entirely inappropriate for the Tribunal to award them.
Reference(s)
ILOAT Judgment(s): 3092
Keywords
exemplary damages; moral damages
Consideration 21
Extract:
The Tribunal now considers the relief claimed. The decision to transfer the complainant to Budapest did not respect the applicable rules (in the FAO Manual) and therefore, in this respect, was unlawful. The complainant requests that this transfer decision be quashed “with full retroactive effect, and all legal effects that flow therefrom”. No attempt is made to identify those legal effects. In any event, whether there remains an operative decision to transfer the complainant is now of no obvious legal or practical consequence, given that the transfer was effected, the complainant remained in Budapest in the post to which he had been transferred for almost two years, and the complainant has now retired and left the service of the FAO. In these circumstances, in accordance with Article VIII of the Statute of the Tribunal, the decision will not be quashed.
Keywords
transfer; relief claimed
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