Judgment No. 2839
Decision
1. The Director-General's decision of 7 December 2007 is set aside as is the Regional Director's decision of 5 September 2005.
2. WHO shall pay the complainant moral damages in the amount of 30,000 euros.
3. If requested by the complainant, the Director-General shall refer the allegations of harassment to the Grievance Panel in accordance with consideration 10.
4. WHO shall pay the complainant costs in the amount of 2,000 euros.
5. Without prejudice to the complainant's right to pursue claims with respect to service-incurred illness, to her separation date, to the exit medical examination and to the interruption of her sick leave, all other claims are dismissed.
Consideration 7
Extract:
"The Tribunal rejects the Organization's argument that the complainant should have pursued her harassment allegations by filing a formal complaint with the Grievance Panel. The Organization established the Grievance Panel to examine and make recommendations regarding formal complaints of harassment. It is clear from a reading of Information Note 36/2004 and Cluster Note 2001/13 that the Organization recognised that a harassment complaint could arise within the context of an appeal against an administrative decision or as a stand-alone complaint, and established separate mechanisms to have such complaints examined by the
Grievance Panel."
Keywords
internal appeals body; internal appeal; organisation's duties; respect for dignity; staff member's interest; staff member's duties
Consideration 9
Extract:
"In her statement of appeal [...] the complainant specifically referred to and detailed the conduct that she alleged constituted a breach of the Organization's policy on harassment.
Upon receipt of these allegations of harassment, the Headquarters Board of Appeal was obliged to refer that aspect of the appeal to the Grievance Panel. The fact that the complainant did not take issue with the Board's failure to make the referral until sometime later, did not absolve the latter of its obligation to make the referral and to hold the appeal in abeyance.
The failure to make the mandatory referral constitutes an error of law for which the complainant is entitled to an award of moral damages. As the Director-General's decision was based on a fundamentally flawed process involving an error of law, it must be set aside."
Keywords
moral injury; internal appeals body; internal appeal; organisation's duties; respect for dignity; staff member's interest; staff member's duties
Consideration 11
Extract:
"It is clear that in accordance with Staff Regulation 1.1 staff members are subject to the authority of the Director-General and to assignment by him or her to any of the activities or offices of the Organization. Further, under Staff Rule 565.2 a staff member may be reassigned at any time in the interest of the Organization. However, in the exercise of the discretion to reassign a staff member, the Organization must take into account the interests and dignity of the staff member, including the provision of work of the same level as that which was performed in the former post and matching the staff member's qualifications, and care must be taken not to cause undue injury to the staff member (see Judgments 2067, under 17, 2191, under 3, and 2229, under 3). Moreover, the staff member is entitled to be informed of the reasons for the reassignment. In addition to ensuring transparency in decision making, providing the reasons for the reassignment permits a staff member to assess the courses of action that may be taken, including the lodging of an appeal, and it also permits a review of the lawfulness of the decision on appeal (see Judgment 1757, under 5)."
Reference(s)
Jugement(s) TAOIT: 1757, 2067, 2191, 2229
Keywords
duty to substantiate decision; organisation's duties; duty to inform; respect for dignity; staff member's interest; assignment; transfer; reassignment; judicial review; discretion
Consideration 15
Extract:
"While a decision to reassign a staff member may be based on multiple factors, it is evident [...] that «capacity strengthening» was not the real reason for the reassignment. [M]isinforming the complainant of the reason for the reassignment reflects a disregard for her dignity."
Keywords
duty to substantiate decision; organisation's duties; duty to inform; respect for dignity; staff member's interest; assignment; reassignment
Consideration 17
Extract:
"Upon being informed of the complainant's forthcoming marriage to the Director of her division, it was entirely proper for the Organization to consider whether the Staff Regulations and Staff Rules or its policy were engaged. It was equally proper to obtain advice on these matters. However, there was no need to canvas the views of some 40 staff members. [...] While properly structured consultations with staff through their association on matters of policy and regulations is appropriate, the canvassing of individual staff members in these circumstances was highly inappropriate and their individual views were irrelevant."
Keywords
marital status; organisation's duties; respect for dignity; staff member's interest; staff regulations and rules; staff member's duties; consultation
Consideration 19
Extract:
"[I]t cannot be said that the Organization engaged in any meaningful consultation with the complainant regarding her reassignment. Providing her with Terms of Reference for a post that she did not know was intended for her, arranging for a meeting with her proposed new Director without being informed of her planned transfer, and a meeting with the Regional Director when the decision had already been taken does not constitute proper consultation."
Keywords
duty to substantiate decision; organisation's duties; duty to inform; respect for dignity; staff member's interest; terms of appointment; assignment; reassignment; consultation
Consideration 3
Extract:
While the complainant has referred to these matters in her submissions, with the exception of the allegations concerning the interruption of her sick leave and the exit medical examination, she has not done so for the purpose of advancing a claim, but instead to provide a context for her other allegations.
Keywords
complaint; claim; submissions
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