Judgment No. 3647
Decision
1. The decision of the Director General of WIPO dated 24 October 2013 is set aside, as are the decisions to end the first competition and to hold a new competition and the decisions taken at the end of the second competition to reject the complainant’s application and appoint Ms M. as Head of the Non-Governmental Organizations and Industry Relations Service.
2. The initial competition process shall be resumed as indicated under 16.
3. WIPO shall pay the complainant compensation for moral injury in the amount of 10,000 euros.
4. It shall also pay him 5,000 euros in costs.
5. All other claims are dismissed.
6. WIPO shall shield Ms M. from any injury which might result from the cancellation of her appointment.
Summary
The complainant challenges the validity of a competition process in which he participated and the lawfulness of the ensuing appointment.
Judgment keywords
Keywords
complaint allowed; decision quashed; competition
Consideration 2
Extract:
The Tribunal first observes that the complainant’s objection to the receivability of WIPO’s reply is unfounded. It should be noted that the date of filing of complaints and briefs with the Tribunal is, in principle, the date on which they are sent and not the date on which they are received by the Registry (see, in particular, Judgment 3566, under 3). In this case, the file contains a delivery receipt showing that the reply was deposited at the International Labour Office, where the Tribunal is based, on 24 June 2014. As the defendant organisation thus sent its reply on that date at the latest, that is, before the time limit expired that same evening, the complainant is wrong to claim that it was filed late.
Reference(s)
ILOAT Judgment(s): 3566
Keywords
time limit; reply
Consideration 4(b)
Extract:
[T]he Tribunal has consistently held that time limits for filing an internal appeal are not binding on a staff member where, for example, the organisation has misled the staff member, concealed some paper from her or him or has otherwise deprived that person of the possibility of exercising her or his right of appeal, in breach of the principle of good faith (see, for example, Judgments 1466, under 5, 2722, under 3, or 3231, under 2). This case law is particularly relevant where a staff member has been misled as to whether she or he has any interest in challenging a decision (see Judgment 2993, under 8), which is exactly what occurred in the present case.
Reference(s)
ILOAT Judgment(s): 1466, 2722, 2993, 3231
Keywords
internal appeal; time bar
Consideration 4(b)
Extract:
[T]he fact that the real reason for the contested decision was initially concealed from the complainant misled him as to whether he had an interest in challenging it. Indeed, although the complainant presumably had no reason to object when he was informed that the selection process had been cancelled because of “organizational changes”, which, by their very nature, are made at the Director General’s discretion, this was plainly not the case when it became apparent that this decision was really designed to avoid the foreseeable outcome of the competition in which he had been shortlisted. The complainant was therefore unduly deprived of the opportunity to appeal against this decision within the normal time limit, in breach of the principle of good faith.
Keywords
cause of action; time limit; good faith
Consideration 6
Extract:
[T]he principle of good faith, from which flow the requirement of mutual trust between an organisation and its staff and the requirement of fairness in appeals proceedings, in any case dictates that such an objection may not properly be raised at this stage of proceedings [in a surrejoinder].
Keywords
surrejoinder; good faith
Consideration 6
Extract:
[T]he Tribunal [...] notes that during the initial competition WIPO must perforce have accepted that the complainant met all of the conditions required by the vacancy announcement since, far from being excluded from the competition at the outset, the complainant was shortlisted for an interview with the Appointment and Promotion Board. It is hence inappropriate for WIPO to suddenly advance this objection, which is apt to cast doubt on the lawfulness of its own conduct.
Keywords
estoppel
Consideration 6
Extract:
[T]he submissions show that WIPO did not claim that the complainant had no cause of action at any time during the internal appeal proceedings, yet such an objection could equally have been raised at that stage and WIPO does not mention any circumstance that prevented it from so doing. The Tribunal has on a number of occasions held that in such circumstances an organisation may not raise such an objection for the first time in the proceedings before the Tribunal (see, for example, Judgments 1655, under 9 and 10, 2255, under 12 to 14, and 3160, under 14).
Reference(s)
ILOAT Judgment(s): 1655, 2255, 3160
Keywords
receivability of the complaint; no cause of action; estoppel
Consideration 6
Extract:
[I]t is worth recalling that an organisation may not raise a new objection to receivability in its surrejoinder, that is to say at a stage of proceedings when the other party is, in principle, no longer able to respond, where the objection in question could have been raised in the reply, as is the case for an objection such as this, based on the absence of a cause of action (see, in particular, Judgments 1082, under 16, 1419, under 20, and 3422, under 14, in fine).
Reference(s)
ILOAT Judgment(s): 1082, 1419, 3422
Keywords
surrejoinder
Consideration 9
Extract:
The Tribunal’s case law recognises that the executive head of an international organisation may cancel a competition in the interest of the organisation if, among other reasons, it becomes apparent that the competition will not enable the post concerned to be filled, and that she or he may, if need be, decide to hold a new competition on different terms (see, for example, Judgments 1223, under 31, 1771, under 4 (e), 1982, under 5 (a), and 2075, under 3).
However, the condition relating to the interests of the organisation must actually be met, so that the cancellation of the initial process is based on a legitimate reason. In this matter as in any other, arbitrary decision-making is unacceptable.
Reference(s)
ILOAT Judgment(s): 1223, 1771, 1982, 2075
Keywords
competition
Consideration 15
Extract:
The unlawfulness of the Director General’s decision to end the initial selection process clearly renders unlawful the subsequent decision to open the new competition for the same post and, by extension, the decisions to reject the complainant’s application and to appoint Ms M. at the end of the second competition.
Keywords
compensation
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