Judgment No. 3652
Decision
1. The FAO shall pay the complainant a total of 30,000 euros material damages in both complaints.
2. The FAO shall pay the complainant 30,000 euros moral damages.
3. The FAO shall pay the complainant a total of 2,000 euros costs on both complaints.
4. All other claims are dismissed.
Summary
The complainant impugns two appointment decisions by the Director-General.
Judgment keywords
Keywords
complaint allowed; joinder; selection procedure
Consideration 3
Extract:
Since the resolution of [the] complaints depends upon the same legal principles and internal regulatory provisions of the FAO, the Tribunal conveniently joins them in this judgment.
Keywords
joinder
Consideration 7
Extract:
The Tribunal’s case law has it that a staff appointment by an international organisation is a decision that lies within the discretion of its executive head. Such a decision is subject to only limited review and may be set aside only if it was taken without authority or in breach of a rule of form or of procedure, or if it was based on a mistake of fact or of law, or if some material fact was overlooked, or if there was abuse of authority, or if a clearly wrong conclusion was drawn from the evidence (see Judgment 3537, under 10). Nevertheless, anyone who applies for a post to be filled by some process of selection is entitled to have her or his application considered in good faith and in keeping with the basic rules of fair and open competition. That is a right which every applicant must enjoy, whatever her or his hope of success may be (see, inter alia, Judgment 2163, under 1, and the case law cited therein, and Judgment 3209, under 11). It was also stated that an organisation must abide by the rules on selection and, when the process proves to be flawed, the Tribunal can quash any resulting appointment, albeit on the understanding that the organisation must ensure that the successful candidate is shielded from any injury which may result from the cancellation of her or his appointment, which she or he accepted in good faith (see, for example, Judgment 3130, under 10 and 11).
Reference(s)
ILOAT Judgment(s): 2163, 3130, 3209, 3537
Keywords
organisation's duties; appointment; competition; selection procedure
Consideration 11
Extract:
The Director-General’s discretion to appoint staff members must be exercised in accordance with the [internal legal] provisions and the general principles of law governing the international civil service, as discretion must be exercised within the bounds of legality.
Keywords
discretion; selection procedure
Considerations 15-16
Extract:
A matter which is more critical [...] is a concern for the integrity of the interview process, which the Appeals Committee raised in its report to the Director-General. The Committee expressed concern regarding the lack of transparency in the process, “including the fact that there [were] no available records of the scores from the interviews, which made it impossible for the Committee to verify whether the appellant’s assumption, that there was one point of difference between her and the original first ranked candidate, was accurate, and, if so, to consider whether there was ‘a significant and relevant difference between’ the external and internal candidates which could have led the PSSC, had it had a chance to review the original submission, to recommend a change in their respective rankings”.
This, in the Tribunal’s view, reflects a serious flaw in the early stages of the selection process. The scores from the interview stage of the selection process were critically important to assist in the determination whether the paramount consideration for selection secured the highest standards of efficiency, technical competence and integrity. They were also necessary to assist in the determination whether the candidates were equally well qualified, so that as an internal candidate, the complainant should have benefitted from that or the gender preference. With the reports from the subsequent stages of the selection process, those scores could have assisted to explain why the complainant was placed second in the two preliminary submissions and why that changed to third in the final submission that was transmitted to the PSSC on 16 November 2010. They could also have assisted to explain to the PSSC that paramount consideration was accorded to the qualifications required in the vacancy announcement; whether the candidates were equally well qualified or otherwise, and, ultimately, whether the complainant should have had the benefit of any preference. They could also have assisted to confirm these same matters for the Appeals Committee in the internal appeal, and for the Tribunal on this complaint.
Keywords
selection procedure
Consideration 25
Extract:
The stated principle is that the nationality of a country that was non-represented or under-represented in the geographic distribution of staff members is only to be taken into account when candidates are equally well qualified. It was in error that qualifications, nationality and geographic distribution were accorded equal weight at that early stage of the process [...].
Keywords
geographical distribution; selection procedure
Consideration 12
Extract:
[The Tribunal] stated in Judgment 2392, under 9:
“It is well settled that preferences such as those mentioned [i.e. by reason of being an internal candidate and by reason of gender] must be given effect to where the choice has to be made between candidates who are evenly matched. On the other hand, they have no role to play where there is a significant and relevant difference between the candidates. […]”
Reference(s)
ILOAT Judgment(s): 2392
Keywords
internal candidate; external candidate
Consideration 12
Extract:
[The Tribunal] relevantly stated as follows in Judgment 2712, under 5 and 6:
“5. The Tribunal has consistently held that an international organisation which decides to hold a competition in order to fill a post cannot select a candidate who does not satisfy one of the required qualifications stipulated in the vacancy announcement (see for example Judgments 1158, 1646 and 2584.)
Reference(s)
ILOAT Judgment(s): 1158, 1646, 2584, 2712
Keywords
internal candidate; external candidate
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