Judgment No. 4777
Decision
The complaint is dismissed.
Summary
The complainant challenges the calculation of his remuneration and the determination of his step following his promotion from grade G.6 to grade P.3.
Judgment keywords
Keywords
general service category; professional category; promotion; complaint dismissed
Consideration 2
Extract:
[T]he complainant complains that the impugned decision was not notified to him until a little over two weeks after the expiry of the 45-day time limit prescribed in ITU’s Staff Rule 11.1.4.
But the Tribunal has recalled that time limits of this kind are not intended to have the effect of nullifying a decision taken after their expiry. Their non-observance does therefore not render such decisions unlawful and, in applicable cases, only entitles the staff member concerned to compensation if it causes injury to her or him (see Judgment 4584, consideration 4). Since the submissions do not indicate how this delay caused any injury to the complainant, the Tribunal considers that the plea is unfounded.
Reference(s)
ILOAT Judgment(s): 4584
Keywords
time limit; delay
Consideration 3
Extract:
[W]hile it is true that the Secretary-General did not consult the complainant’s head of unit on the matter, as the Appeal Board had also recommended, the Tribunal’s case law establishes that the executive head of an organisation may reject the recommendations of an internal appeal body as long as reasons are given for her or his decision (see, for example, Judgment 4616, consideration 9, and the judgments cited therein). Since the Secretary-General provided reasons in support of his decision explaining why he deemed it unnecessary to consult the head of unit, the Tribunal considers that the argument on which the complainant seeks to rely, solely concerning that lack of consultation, must be rejected.
Reference(s)
ILOAT Judgment(s): 4616
Keywords
motivation of final decision
Consideration 3
Extract:
[T]he Tribunal’s case law [...] establishes that the executive head of an organisation has wide discretion in appointing or promoting staff and, therefore, the decisions that she or he takes in this area are subject to only limited review by the Tribunal. Thus, the Tribunal will only interfere in such a decision if it was taken without authority or in breach of a rule of form or procedure, if it was based on a mistake of fact or law, if an essential fact was overlooked, if a clearly wrong conclusion was drawn from the evidence or if there was abuse of authority (see, for example, Judgments 4552, consideration 2, 4451, consideration 6, and 3742, consideration 3). This case law also applies in the particular situation where, as in the present case, the object of the contested decision is to determine whether it is appropriate to rescind the award of a promotion to a staff member who now feels dissatisfied with it. In this regard, the complainant is, in reality, simply asking the Tribunal to replace the Secretary-General’s assessment by its own assessment of whether or not the promotion he received should be rescinded, which misconstrues the limited power of review of the Tribunal in such a case.
Reference(s)
ILOAT Judgment(s): 3742, 4451, 4552
Keywords
promotion; appointment; judicial review; discretion
Consideration 6
Extract:
As the Tribunal has repeatedly stated, officials are expected to know the rules and regulations to which they are subject (see, for example, Judgment 4673, consideration 16, and the case law cited therein). This principle clearly includes any matters particular to their personal situation. It was the complainant’s choice to apply for the post in respect of which he was awarded the promotion in question and it was up to him to assess the advantages and disadvantages thereof beforehand.
Reference(s)
ILOAT Judgment(s): 4673
Keywords
candidate; selection procedure; duty to be informed; ignorance of the rules; duty to know the rules
Consideration 6
Extract:
[A]ccording to well-established case law of the Tribunal, the general principle of good faith and the duty of care demand that international organisations treat their staff with due consideration in order to avoid causing them undue injury and that an employer must consequently inform officials in advance of any action that might imperil their rights or harm their rightful interests (see Judgment 4072, consideration 8, and the case law cited therein). However, the Tribunal considers that this obligation to act in good faith and this duty of care do not – despite what the complainant submits to the contrary, without identifying anything in the Tribunal’s case law to substantiate his argument – extend to a requirement for the organisation to take the initiative to calculate the loss or gain in salary which might result from a promotion from a grade G post to a grade P post for any staff member interested in applying for such a promotion.
Reference(s)
ILOAT Judgment(s): 4072
Keywords
good faith; duty to inform; salary; duty of care
Considerations 7-9
Extract:
The complainant concludes that the higher the grade, the higher the remuneration ought to be, so that a promotion should necessarily lead to a significant increase in pay.
However, firstly, the Tribunal notes that, as the organisation rightly points out in its submissions, the methodology that has been embodied and applied in the United Nations system for decades for determining salaries does not show a linear continuity between the responsibilities and levels of pay at the higher grades in category G and those at the lower grades in category P. Secondly, it is apparent from the submissions and the evidence that to accede to the complainant’s claim for a higher level of remuneration in his grade P.3 post than that resulting from the adjustment already awarded to him on the basis of the remuneration he received at grade G.6 would, on the contrary, amount to a deviation from the principle of equal pay for equal work when compared with other ITU staff members at grade P.3 who did not come from the General Service category.
In that regard, the Tribunal already recalled, in its Judgment 1196, consideration 19, that it is well known that different salary scales exist for the General Service category and the Professional category, which in itself neither is discriminatory nor constitute a breach of the principle of equal treatment, emphasising the following:
“[A]ccording to consistent precedent the distinction between international and local staff is a fundamental one inherent in the very nature of an international organisation. It is due to the peculiar circumstances in which such organisations work and it is concurred in, with both its advantages and its drawbacks, by anyone who seeks employment with them, be it in one category of staff or in the other. Each category of staff offers career prospects and conditions of recruitment and pay that differ according to its own requirements, and a staff member may not plead breach of equal treatment if treated differently because he belongs to one category rather than to the other.”
Similarly, in Judgment 498, consideration 1, the Tribunal had made the following remarks in relation to those distinctions:
“G staff are recruited largely in [the headquarters country] or neighbouring countries. It is therefore only right that [...] their pay [...] should be in line with pay scales in [the headquarters country]. Officials in other categories, however, may come from and be required to serve anywhere in the world. [...] [The organisation] takes as its standard of comparison the best-paid national civil service. Consequently the allegation of unlawful discrimination fails.”
Reference(s)
ILOAT Judgment(s): 1196
Keywords
equal treatment; general service category; professional category; promotion; salary; equal pay for equal work
Consideration 9
Extract:
In Judgment 498, the Tribunal had [...] noted that, contrary to what the complainant maintains in the present case, it was not unlawful for staff members in the Professional category and those in the General Service category to receive different amounts of family allowance, since the principle of equal treatment can only be applied to staff members who are in the same situation.
Reference(s)
ILOAT Judgment(s): 498
Keywords
equal treatment; general service category; professional category; allowance; family allowance
Consideration 11
Extract:
[T]he reply submitted by ITU to the Appeal Board in the internal appeal procedure could not, in itself, be regarded as a decision. Furthermore, even if it did constitute a decision, in view of the preceding considerations, that decision would have stemmed from a purely factual error and so would not, in any event, have created any rights (see Judgments 3483, consideration 6, 2906, consideration 11, and 1111, consideration 5).
Reference(s)
ILOAT Judgment(s): 1111, 2906, 3483
Keywords
clerical error; administrative decision
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