Judgment No. 4768
Decision
1. The Director General’s collective transfer decision of 27 September 2019 is set aside insofar as it concerns the complainant.
2. Eurocontrol shall pay the complainant moral damages in the amount of 10,000 euros.
3. It shall also pay him costs in the amount of 8,000 euros.
4. All other claims are dismissed.
Summary
The complainant impugns what he refers to as decisions concerning Eurocontrol Agency’s reorganisation and his transfer following that reorganisation.
Judgment keywords
Keywords
complaint allowed; transfer; reorganisation
Consideration 2
Extract:
Eurocontrol contends that the complaint is irreceivable because the complainant did not exhaust the internal means of redress available to him as an official of the Organisation, contrary to the requirements of Article VII, paragraph 1, of the Statute of the Tribunal. However, the Tribunal notes that, under the last sentence of Article 92(2) of the Staff Regulations, an implied decision rejecting the complainant’s internal complaint that could be challenged before the Tribunal arose when four months had passed from the date on which that internal complaint had been lodged, that is on 21 February 2020 (see Judgments 4696, consideration 2, 4695, consideration 2, and 4694, consideration 3). Consequently, by the date on which the complainant filed his complaint with the Tribunal, the internal means of redress available to him had indeed been exhausted [...]. The Organisation’s objection to receivability in this respect must therefore be dismissed.
Reference(s)
ILOAT Judgment(s): 4694, 4695, 4696
Keywords
receivability of the complaint
Consideration 3
Extract:
[T]he complainant raised the point that, after he had filed his complaint with the Tribunal, [...] the Joint Committee for Disputes eventually issued its opinion on his internal complaint [...]. This led to the Director General taking the decision [...] explicitly rejecting that internal complaint [...].
Since the parties had the opportunity to comment fully in their submissions on the decision expressly rejecting the complainant’s internal complaint, the Tribunal considers that, in accordance with its case law, it is appropriate to treat the complaint as if it were directed against that decision (for similar cases, see, in particular, Judgments 4660, consideration 6, 4065, consideration 3, and 2786, consideration 3).
Reference(s)
ILOAT Judgment(s): 2786, 4065, 4660
Keywords
express decision; implied decision; impugned decision
Consideration 5
Extract:
[T]he Tribunal observes that, in his internal complaint of 21 October 2019, in addition to challenging his transfer on 27 September, the complainant – as he himself states in his rejoinder – in effect requested a position complying with the applicable rules and the corresponding job description. In Judgment 4694, consideration 7, in the case of such a request, the Tribunal pointed out that Article 92(1) of Eurocontrol’s Staff Regulations, on which the complainant relies, provides that, if that request is rejected, whether implicitly or explicitly, an internal complaint as referred to in Article 92(2) must be lodged against that rejection before the matter is brought before the Tribunal. In Judgment 4694, consideration 8, the Tribunal further stated:
“However, the submissions show that no internal complaint challenging this implied or express decision to refuse [his request] was ever made by the complainant at the relevant time, and therefore he did not exhaust the relevant internal means of redress, thus contravening the requirements of Article VII, paragraph 1, of the Statute of the Tribunal.”
It follows that the challenge to the decision rejecting the request for “a written individual decision that specifie[d] [the complainant’s] tasks and responsibilities that [were] as a minimum in the scope of [his] previous job with a proper assessment of the grade associated to the new position” is irreceivable because the complainant failed to exhaust internal remedies. The same applies to the complainant’s claim requesting the Tribunal to order Eurocontrol to establish and provide him with a “real position and a description of the duties, tasks and responsibilities [...] commensurate with his grade, level and experience”
Reference(s)
ILOAT Judgment(s): 4694
Keywords
failure to exhaust internal remedies
Consideration 6
Extract:
The complainant submits that the organisational charts of 4 May 2020 and 5 May 2020 [...] are unlawful or invalid. However, these documents post-date the complainant’s internal complaint of 21 October 2019 and he cannot in any event allege that they are unlawful for the first time before the Tribunal. This claim must therefore also be dismissed as irreceivable.
Keywords
subsequent fact
Consideration 7
Extract:
The complainant further requests that the Director General’s internal memorandum of 4 July 2019 be set aside, but that claim is irreceivable. Under the Tribunal’s settled case law, a general decision intended to serve as a basis for individual decisions – as is the case of the memorandum at issue – cannot be impugned, save in exceptional cases, and its lawfulness may only be challenged in the context of a challenge to the individual decisions that are taken on its basis (see, for example, Judgments 4734, consideration 4, 4572, consideration 3, 4278, consideration 2, 3736, consideration 3, and 3628, consideration 4).
Reference(s)
ILOAT Judgment(s): 3628, 3736, 4278, 4572, 4734
Keywords
claim; general decision; individual decision
Consideration 8
Extract:
In respect of the complainant’s submission in [...] his rejoinder that compliance by Eurocontrol with its obligations “should take the form of the assignment of the post [in question]”, it must be noted that this request is not one of the claims formally set out by the complainant in his submissions.
Keywords
claim; formal requirements
Consideration 9
Extract:
[T]he Tribunal considers that the complainant’s claim for Eurocontrol to be “ordered to comply” with Articles 7 and 30 of the Staff Regulations cannot be granted. It is settled case law that it is not for the Tribunal to issue such general declarations or declarations of law, or declaratory orders (see, for example, Judgments 4637, consideration 6, 4492, consideration 8, and 4246, consideration 11).
Reference(s)
ILOAT Judgment(s): 4246, 4492, 4637
Keywords
injunction
Consideration 12
Extract:
In respect of staff transfers, the Tribunal stated the following in Judgment 4687, consideration 5, which refers to Judgments 4595, consideration 2, and 4427, consideration 2:
“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.”
Among the complainant’s various pleas against the contested transfer decision, there is one which falls within the limited scope of the Tribunal’s power of review thus defined, since it relates to a breach of procedural rules, and is decisive for the outcome of this dispute. This plea concerns a breach of the complainant’s right to be heard before the decision was taken.
Reference(s)
ILOAT Judgment(s): 4427, 4595, 4687
Keywords
transfer; judicial review
Consideration 13
Extract:
In Judgment 4609, consideration 8, the Tribunal recalled that its case law “requires that a staff member who is to be transferred be informed in advance of the nature of the post proposed for her or him and, in particular, of the duties involved, so that she or he is able to comment on those new duties [...] (see, for example, Judgments 4451, consideration 11, 3662, consideration 5, 1556, considerations 10 and 12, and 810, consideration 7)”. Similarly, in Judgment 4399, consideration 9, the Tribunal noted that “a proper consultation with the complainant prior to the decision being taken” was necessary. While it is true that this case law concerned individual transfers and not a collective transfer as in the present case, the Tribunal considers that the Organisation is wrong to submit that this requirement does not apply here because there is nothing in its Staff Regulations and Rules of Application imposing such an obligation in the context of a collective transfer carried out in the interests of the service.
Firstly, the absence of a binding provision to this effect in the applicable rules cannot permit an organisation to disregard the principles established by the Tribunal’s case law. Secondly, the fact that the transfer was collective rather than individual does not exempt the Organisation from this fundamental requirement. Although the Tribunal’s case law has it that the general principle protecting a staff member’s right to be heard cannot be applied to a general, impersonal decision which is collective in scope (see, for example, Judgments 4593, consideration 7, and 4283, consideration 6), in the present case, even if the impugned decision was collective in scope, it was obviously not impersonal. The Tribunal considers that a decision which, as in this case, notifies specifically identified staff members of their new individual postings with effect from 4 July 2019 cannot be considered an impersonal decision.
The Tribunal is not persuaded by Eurocontrol’s argument that it would not be “conceivable or even possible” for an organisation to consult individually each staff member before a collective transfer on the scale of that at issue in the present case, which affected over 600 staff members. The Organisation cannot refer to the scale of the collective transfer in support of its argument that it was not required to allow every staff member to comment before transferring her or him, even if this was done in a manner that was adapted and appropriate to the particular situation of this major reorganisation.
Reference(s)
ILOAT Judgment(s): 810, 1556, 3662, 4283, 4399, 4451, 4593, 4609
Keywords
general decision; transfer; consultation; right to be heard
Consideration 15
Extract:
The Tribunal considers that, owing to the circumstances in which the complainant’s transfer took place, without him being afforded any opportunity to express his views or to be heard before it was put into effect, that transfer was bound to hurt and shock him and thereby cause him substantial and serious moral injury. The Tribunal considers that this moral injury will be fairly redressed by awarding the complainant compensation in the amount of 10,000 euros.
Keywords
moral injury; transfer; consultation; right to be heard
Consideration 16
Extract:
The Tribunal finds that, as the complainant argues in his submissions, the delay of 23 months in reaching a decision on his internal complaint was clearly excessive and it was particularly unreasonable that the Director General did not take a decision until more than 10 months after the Joint Committee for Disputes had issued its opinion. As the complainant has not submitted any claim for damages under this head, no specific order will be made. However, the Tribunal wishes to point out to Eurocontrol that such a delay, which it does not convincingly justify in its submissions, is unacceptable.
Keywords
claim; formal requirements; delay in internal procedure
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