Organisation's duties (202, 203, 204, 205, 206, 207, 208, 645,-666)
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Keywords: Organisation's duties
Total judgments found: 652
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Judgment 4411
132nd Session, 2021
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate her appointment as a result of the abolition of her post.
Consideration 15
Extract:
In its pleadings before the Tribunal, the FAO again provided no information regarding the restructuring of LOG. In particular, the FAO did not adduce any evidence as to whether LOG was, in fact, restructured and, if so, when the decision to restructure LOG was taken, in particular, if the restructuring had occurred prior to the decision to abolish the complainant’s post. These were facts within the knowledge of the FAO that the FAO opted not to provide. In this regard, the FAO submits that it was “not legally obliged” to provide the complainant with “documentation on the proposed restructuring”, referring to Judgment 3920, consideration 11, and it emphasises that she has not “adduced any evidence to discharge her burden of proving that extraneous factors motivated the decision to abolish her post”. However, as the Tribunal observed in Judgment 3415, consideration 9, “[w]hile international organisations are entitled to defend proceedings before the Tribunal, and even do so robustly, it is singularly unhelpful and inappropriate for an organisation to refuse to provide documents sought by a complainant that are patently relevant to his case and then argue that the complainant has not furnished relevant evidence in support of that case”.
Reference(s)
ILOAT Judgment(s): 3415, 3920
Keywords:
abolition of post; burden of proof; evidence; organisation's duties; reorganisation;
Judgment 4384
131st Session, 2021
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to reclassify his post.
Consideration 7
Extract:
[A]s part of its duty of care, the Organization has an obligation to maintain a properly functioning appeal system which adheres to the established rules and regulations (see, for example, Judgment 3027, consideration 6).
Reference(s)
ILOAT Judgment(s): 3027
Keywords:
duty of care; internal appeal; organisation's duties;
Judgment 4221
129th Session, 2020
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the rejection of her request for reclassification of her post.
Consideration 10
Extract:
The Tribunal sees no circumstances on which to hold that, in breach of its duty of care to the complainant, the Administration attempted (as the Tribunal severely sanctions consistent with Judgment 2282, consideration 11) to keep her from exercising her right to appeal[.]
Reference(s)
ILOAT Judgment(s): 2282
Keywords:
abuse of power; duty of care; misuse of authority; organisation's duties;
Judgment 4217
129th Session, 2020
International Fund for Agricultural Development
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to provide her with the record of the investigation that ensued after she filed a harassment complaint against her supervisor, and the fact that she received no compensation for the moral harassment that she claims to have suffered.
Considerations 4 and 6
Extract:
The Tribunal considers that IFAD erred in refusing to grant the complainant’s request for a copy of the report established by the AUO at the end of the investigation in respect of the supervisor mentioned in her harassment complaint.
The Tribunal has consistently held that a staff member must, as a rule, have access to all the evidence on which the competent authority bases its decision concerning her or him (see, for example, Judgments 2229, under 3(b), 2700, under 6, 3214, under 24, or 3295, under 13). This implies, among other things, that an organisation must forward to a staff member who has filed a harassment complaint the report drawn up at the end of the investigation of that complaint (see, for example, Judgments 3347, under 19 to 21, and 3831, under 17).
Of course, this obligation to disclose must be balanced against the need to respect the confidential nature of some aspects of an inquiry, particularly the witness statements gathered in the course of the inquiry. As the Tribunal’s case law has confirmed, such confidentiality may be necessary in order to ensure witnesses’ protection and freedom of expression (see, in particular, Judgments 3732, under 6, and 3640, under 19 and 20). Moreover, in this case the confidentiality of some information related to the investigation was expressly required by the provisions on this matter contained in section 4 of Annex I to the President’s Bulletin PB/2007/02 of 21 February 2007 concerning investigation processes.
Although it is true that IFAD produced a redacted copy of the investigation report as an annex to its surrejoinder, by refusing to provide the complainant with the report in question during the internal appeals procedure it nevertheless unlawfully deprived her of the possibility of usefully challenging the findings of the investigation. In this case, the fact that the complainant was ultimately able to obtain a copy of the report during the proceedings before the Tribunal does not remedy the flaw tainting the internal appeal process. Indeed, the Tribunal’s case law recognises that, in some cases, the nondisclosure of evidence can be corrected when this flaw is subsequently remedied, including in proceedings before it (see, for example, Judgment 3117, under 11), that is not the case where the document in question is of vital importance having regard to the subject matter of the dispute, as it is here (see Judgments 2315, under 27, 3490, under 33, 3831, cited above, under 16, 17 and 29, or 3995, under 5).
[...]
[I]t [...] follows from the above that the decision [...] whereby IFAD refused to provide the complainant with the investigation report drawn up by the AUO, is unlawful and must, therefore, be set aside.
Reference(s)
ILOAT Judgment(s): 2229, 2315, 2700, 3214, 3295, 3347, 3490, 3640, 3732, 3831, 3995
Keywords:
confidential evidence; harassment; inquiry; investigation; organisation's duties;
Judgment 4171
128th Session, 2019
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to dismiss her internal complaints of moral harassment.
Consideration 13
Extract:
Even though the charge of harassment cannot stand, an international organisation fails in its duty to treat staff members with dignity and avoid causing them undue and unnecessary injury if the organisation is aware of an unhealthy working atmosphere in the service where a staff member works but allows it to remain without taking adequate measures to remedy the situation (see, to this effect, Judgment 2067, considerations 16 and 17).
Reference(s)
ILOAT Judgment(s): 2067
Keywords:
duty of care; duty to inform; good faith; harassment; organisation's duties; patere legem; respect for dignity;
Judgment 4115
127th Session, 2019
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to downgrade him for serious misconduct.
Consideration 13
Extract:
The disciplinary proceedings were initiated before the appraisal period concluded. In Judgment 3224 the Tribunal said at consideration 7 that an organisation cannot base an adverse decision on a staff member’s unsatisfactory performance if it has not complied with the rules governing the evaluation of that performance. The decision to commence disciplinary proceedings can, for the purposes of the application of this principle, be characterised as an adverse decision. Even if the EPO believed that nothing was going to change, in terms of the complainant’s conduct, between the time the disciplinary proceedings were commenced and the conclusion of the appraisal period a little over a month later, it was nonetheless obliged to complete the assessment of the complainant’s performance in accordance with Circular No. 366 before initiating the disciplinary proceedings.
Keywords:
disciplinary procedure; due process; organisation's duties; patere legem; performance evaluation; unsatisfactory service; work appraisal;
Judgment 4098
127th Session, 2019
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to select him for a position for which he had applied.
Consideration 10
Extract:
It is well settled in the case law that internal appeals must be conducted with due diligence and in a manner consistent with the duty of care an international organization owes to its staff members (see Judgment 3160, under 16; see also Judgments 3582, under 3, and 3688, under 11). In the present case, there was unreasonable delay in the appeal process[.]
Reference(s)
ILOAT Judgment(s): 3160, 3582, 3688
Keywords:
delay in internal procedure; duty of care; organisation's duties;
Judgment 4097
127th Session, 2019
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decisions to end her participation in the reassignment process and to terminate her fixed-term appointment further to the abolition of her post.
Consideration 10
Extract:
The complainant refers in her pleas to the Tribunal’s judgments which emphasise the need for an organization to apply rules concerning the abolition of posts and the reassignment of staff with considerable generosity towards the affected staff members (see, for example, Judgments 133 and 388). While these and many other judgments of the Tribunal concerned permanent staff, they were judgments given at a time when the preponderance of staff in international organizations were permanent staff. There is, presently, a greater mix of staff of differing status in international organizations. However, simply because some staff are not permanent, it does not follow that those other classes of staff of differing status should be afforded no protection by principles developed by the Tribunal in circumstances where their post is abolished and attempts are being made to reassign them.
Reference(s)
ILOAT Judgment(s): 133, 388
Keywords:
abolition of post; analogy; organisation's duties; reassignment; status of complainant;
Consideration 13
Extract:
The Tribunal is satisfied that the decision not to extend the complainant’s reassignment period was flawed. It is not a question of whether it was likely or not that the complainant would be placed in a position emerging from the reorganization. The power to extend a reassignment period is a discretionary power but it is not unfettered. It must be exercised having regard to the principles developed by the Tribunal. An organization that is endeavouring to reassign a staff member whose position has been abolished is obliged to do all that it can to find another position. It has been stated in one judgment of the Tribunal that the organization must do “its utmost” to find another position (see Judgment 3754, consideration 16, citing Judgment 2830, consideration 9). Indeed, the Tribunal has said that it is incumbent on the organization to prove that the affected staff member was not able to remain in the organization’s service (see Judgment 2830, consideration 9). These concepts are comprehended by the expression “reasonable efforts” in Staff Rule 1050.2. Even if it was only remotely possible, in the circumstances of a case such as the present when the reorganization was incomplete, that the reorganization might create a position to which the complainant could have been appointed, the complainant was entitled to the benefit of an extension of the reassignment period, as proposed by the RRC or for an even longer period.
Keywords:
abolition of post; discretion; organisation's duties; reassignment;
Consideration 9
Extract:
The Tribunal recently addressed the question of what were an organization’s obligations in relation to reassignment in Judgment 4036, considerations 7 and 8, citing Judgment 3908. Several propositions emerge from Judgment 4036 which are consistent with earlier case law. The first is that normative legal documents promulgated within an organization cannot alone circumscribe the obligation of the organization to explore other employment options within the organization for staff whose positions have been abolished. The second is that an organization has a duty to apply processes biased in favour of the staff member whose position has been abolished and which are likely to promote appointment to another position. The third and related proposition is that an organization has an obligation to deal fairly with staff who occupy an abolished position which ordinarily extends to finding, if they exist, other positions within the organization for which those staff have the experience and qualifications. This last proposition is qualified by matters referred to in consideration 16 of Judgment 3908. The fourth proposition is that it is not the Tribunal’s role to actually assess whether a staff member whose position has been abolished was suitable for another position to which they might have been reassigned. Rather, it is to ascertain whether any or adequate consideration was given to the fact that the complainant was then a member of staff whose post had been abolished and was facing the termination of her or his employment.
Keywords:
abolition of post; organisation's duties; reassignment;
Judgment 4094
127th Session, 2019
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to abolish her post and to terminate her fixed-term contract.
Consideration 4
Extract:
The Tribunal recently addressed this question in Judgment 4036, considerations 7 and 8, citing Judgment 3908. Several propositions emerge from Judgment 4036 which are consistent with earlier case law. The first is that normative legal documents promulgated within an organization cannot alone circumscribe the obligation of the organization to explore other employment options within the organization for staff whose positions have been abolished. The second is that an organization has a duty to apply processes biased in favour of the staff member whose position has been abolished and which are likely to promote appointment to another position. The third and related proposition is that an organization has an obligation to deal fairly with staff who occupy an abolished position which ordinarily extends to finding, if they exist, other positions within the organization for which those staff have the experience and qualifications. This last proposition is qualified by matters referred to in consideration 16 of Judgment 3908. The fourth proposition is that it is not the Tribunal’s role to actually assess whether a staff member whose position has been abolished was suitable for another position to which they might have been reassigned. Rather, it is to ascertain whether any or adequate consideration was given to the fact that the complainant was then a member of staff whose post had been abolished and was facing the termination of her or his employment.
Reference(s)
ILOAT Judgment(s): 3908, 4036
Keywords:
abolition of post; organisation's duties; reassignment;
Judgment 4090
127th Session, 2019
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the processing of his application for a disability benefit and the calculation of his sick leave entitlements.
Consideration 9
Extract:
[T]he final constitution of the Board [was delayed] for almost four months. This was an unreasonably long period and delayed the resolution of the complainant’s application, which was ultimately successful, for a disability benefit. While the complainant has not discharged the burden of proving retaliation, bias and prejudice, the IAEA is liable for the consequences of this delay involving, as it does, a breach of its duty of care towards the complainant, a ground relied on by the complainant in his fifth argument (see Judgment 2936, consideration 19). The IAEA, through its officers, was obliged to take all reasonable steps to ensure that the complainant’s request for review of the decision to refuse him a disability benefit was dealt with as expeditiously as possible. If, as happened, an impasse about who should be the Chair arose between a member of the Board nominated by the staff member and a temporary member [...] of the Board nominated by the Administration who also had the responsibility to nominate another member as his own replacement, then steps should have been taken with great expedition to nominate the member to replace him.
Keywords:
breach; composition of the internal appeals body; delay; disability benefit; duty of care; medical board; organisation's duties;
Judgment 4086
127th Session, 2019
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to maintain her contested job description.
Considerations 10-11
Extract:
The Tribunal’s case law has it that when a staff member of an international organization is transferred to a new post in non-disciplinary circumstances, that transfer is subject to the general principles governing all decisions affecting the staff member’s status. The organization must show due regard, in both form and substance, for the dignity of the staff member, particularly by providing her or him with work of the same level as that which she or he performed in her or his previous post and matching her or his qualifications (see, for example, Judgment 2229, under 3(a)). This requirement is consistent with Staff Regulation 4.3(c) [...].
The responsibilities that attach to posts are comparable where on an objective basis the level of the duties to be performed is similar (see, for example, Judgment 1343, under 9). It is not for the Tribunal to reclassify a post or to redefine the duties attaching thereto, as that exercise falls within the discretion of the executive head of the organization, on the recommendation of the relevant manager, and it is equally within the power of the management to determine the qualifications required for a particular post (see, for example, Judgment 2373, under 7). However, every employee has the right to a proper administrative position, which means that she or he should both hold a post and perform the duties pertaining thereto and should be given real work (see, for example, Judgment 2360, under 11).
Reference(s)
ILOAT Judgment(s): 1343, 2229, 2360, 2373
Keywords:
assignment; discretion; general principle; grade; judicial review; organisation's duties; post classification; post description; post held by the complainant; reclassification; respect for dignity; transfer;
Judgment 3995
126th Session, 2018
International Fund for Agricultural Development
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the measures taken by IFAD following its investigation into his allegations of harassment.
Consideration 9
Extract:
According to the Tribunal’s case law, by virtue of the principle that an international organisation must provide its staff members with a safe and healthy working environment, it is liable for all injuries caused to a staff member by a supervisor when the victim is subjected to treatment that is an affront to her or his dignity (see, for example, Judgments 1609, under 16, 1875, under 32, 2706, under 5, or 3170, under 33).
Reference(s)
ILOAT Judgment(s): 1609, 1875, 2706, 3170
Keywords:
duty of care; duty to inform; good faith; organisation's duties; patere legem; respect for dignity;
Judgment 3963
125th Session, 2018
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant alleges that the Organisation has breached its duty of care in relation to possible taxation of the invalidity allowance.
Consideration 2
Extract:
Having regard to the way in which the questions were formulated, the Organisation supplied answers which may be deemed adequate. The Tribunal therefore finds that, in the circumstances, the EPO honoured its obligation to provide information and its duty of care. Indeed, as the Tribunal observed in Judgment 3213, under 7, whilst international organisations have a duty of care towards their employees and must provide clear rules and regulations as well as clarifications of such when requested, they cannot be solely responsible for every situation stemming from a misunderstanding of those rules.
Reference(s)
ILOAT Judgment(s): 3213
Keywords:
duty of care; duty to inform; organisation's duties;
Judgment 3935
125th Session, 2018
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant accuses his former supervisor of moral harassment.
Consideration 16
Extract:
[T]he complainant’s contention that in this case UNESCO breached the time limits prescribed in the provisions governing the appeals procedure is well founded. [...]
It is true that, as UNESCO rightly points out, the failure to observe the aforementioned provisions of the Statutes of the Appeals Board did not seriously infringe the complainant’s rights, and the delays, some of which are attributable to the complainant, can partly be explained by the unusual complexity of the case. It should also be borne in mind that the Director-General’s final decision was preceded by discussions with the complainant aimed at reaching a settlement, which obviously delayed its adoption.
Nevertheless, the Organization was obliged, in accordance with the principle tu patere legem quam ipse fecisti, to adhere more strictly to the procedural time limits laid down in the Statutes of the Appeals Board. Its failure to do so caused the complainant moral injury, for which he legitimately claims redress (see, for similar cases, Judgments 3579, under 4, and 3688, under 11).
Reference(s)
ILOAT Judgment(s): 3579, 3688
Keywords:
delay in internal procedure; moral injury; organisation's duties; patere legem; time limit;
Judgment 3908
125th Session, 2018
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to abolish his post and terminate his appointment.
Considerations 16-19
Extract:
[T]he Tribunal has long recognised the right of an international organisation to restructure and abolish positions (see, for example, Judgment 2742, consideration 34). This will imperil the continuing employment of the occupants of those abolished positions. However a concomitant of that right to abolish positions is an obligation to deal fairly with the staff who occupy those abolished positions. That extends to finding, if they exist, other positions within the organisation for which those staff have the experience and qualifications. The Tribunal accepts that there may be other disqualifying criteria. One might be, in a particular set of circumstances, that the number of staff whose positions have been abolished exceeds the number of available positions. However the imprecise concept of “unsuitability” as assessed by a selection committee as if it were a competition for initial appointment, might not be enough to disqualify a staff member unless it can be demonstrated that there is a real and substantial reason why a staff member in an abolished position will not be able to perform the duties of the available position satisfactorily notwithstanding they have the required qualifications and experience. This would be all the more so, as is the case in these proceedings, where the functions of the new position reflect some of the functions of the position which is being abolished and there has been no material adverse assessment of the performance of the staff member in the performance of those functions in the abolished position.
[...]
The Tribunal is satisfied that the ICC did not take adequate steps to reassign the complainant after the abolition of his post. To reject his candidature for a number of available positions on the basis that he was not suitable as part of an assessment in a competitive selection process, falls short of what was required. There is no reason, discernible from the pleas, why the complainant could not have been reassigned or redeployed to one of the new positions to which some of the functions were assigned from his abolished position and in particular the Deputy Legal Counsel position discussed in the preceding consideration.
Reference(s)
ILOAT Judgment(s): 2742
Keywords:
abolition of post; organisation's duties; reassignment; reorganisation;
Judgment 3903
125th Session, 2018
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the termination of his fixed-term appointment.
Consideration 24
Extract:
[T]here is no evidence in the record to support the assertion that a review of the requirements of newly created positions was undertaken to ascertain whether the complainant had the necessary qualifications for any of those positions. It would be expected that the complainant would have at least been informed that other options had been considered. More importantly, it is also noted that the possible options considered were limited to the newly created positions as a result of the restructuring. The duty contemplated in the case law is aimed at finding other employment within the broader organisation and is not limited to newly created positions as a result of restructuring. As stated in the case law, the failure to explore with the complainant other possible options within the Court was a breach of the ICC’s duty to treat the complainant with dignity and respect (see, for example, Judgment 2902, under 14).
Reference(s)
ILOAT Judgment(s): 2902
Keywords:
abolition of post; organisation's duties; reassignment; respect for dignity;
Judgment 3902
125th Session, 2018
Centre for the Development of Enterprise
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to pay him the indemnity due in the event of the closure of the CDE.
Consideration 11
Extract:
The right which the Tribunal must uphold is the right to remain in employment, not the right to termination thereof. The Tribunal considers that termination of employment must be an ultima ratio measure to which recourse may be had only after all other alternatives have been examined and found to be impracticable (see Judgment 2830, under 8(a)). At all events, continued employment must be preferred to redundancy.
Reference(s)
ILOAT Judgment(s): 2830
Keywords:
abolition of post; organisation's duties; termination of employment;
Judgment 3861
124th Session, 2017
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the refusal to grant her flexible working arrangements during the breastfeeding period.
Consideration 9
Extract:
In Judgment 3024, under 12, the Tribunal recalled that the principle of good faith and the concomitant duty of care demand that international organisations treat their staff with due consideration in order to avoid causing them undue injury; an employer must consequently inform officials in advance of any action that may imperil their rights or harm their rightful interests (see Judgment 2768, under 4).
Reference(s)
ILOAT Judgment(s): 2768, 3024
Keywords:
duty of care; duty to inform; good faith; organisation's duties; respect for dignity;
Judgment 3692
122nd Session, 2016
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant who, at the material time, was working as a patent examiner, objects to three of his staff reports, submits that he was subjected to harassment and challenges the rejection of his request for an independent examination of several of his dissenting opinions on patent applications.
Consideration 14
Extract:
[I]t is well settled by the Tribunal’s case law that if the rules of an international organisation require that an appraisal form must be signed not only by the direct supervisor of the staff member concerned but also by her or his second-level supervisor, this is designed to guarantee oversight, at least prima facie, of the objectivity of the report. The purpose of such a rule is to ensure that responsibilities are shared between these two authorities and that the staff member who is being appraised is shielded from a biased assessment by a supervisor, who should not be the only person issuing an opinion on the staff member’s skills and performance. It is therefore of the utmost importance that the competent second-level supervisor should take care to ascertain that the assessment submitted for her or his approval does not require modification (see Judgment 320, under 12, 13 and 17, or more recently Judgments 3171, under 22, and 3239, under 15). Of course, this check must be carried out with particular vigilance when the assessment occurs in a context where it is especially to be feared that the supervisor making it might lack objectivity and, a fortiori, when it takes place, as it did in the instant case, in a situation of overt antagonism (see Judgment 3171, under 23).
Reference(s)
ILOAT Judgment(s): 320, 3171, 3239
Keywords:
organisation's duties; performance evaluation; performance report; supervisor;
Judgment 3678
122nd Session, 2016
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss him at the end of his probation period.
Consideration 2
Extract:
It is true that there is no evidence in the file to show that the Organization formally notified the complainant during his probation period that there was an objective risk that his appointment would not be confirmed at the end of that period. However, it is clear from the end-probation period report of November 2013, which was forwarded to him and on which he in fact commented, that his supervisor considered that his performance fell short of the expected level. In addition [...], the complainant was informed on several occasions during his probation period that he was not achieving the objectives which had been set for him in his induction interview. In these circumstances, the complainant must have been aware that he ran a serious risk of not having his appointment confirmed at the end of his probation period.
Keywords:
judicial review; organisation's duties; probationary period; termination of employment; unsatisfactory service; work appraisal;
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