Judgment No. 4008
Decision
1. The Secretary General’s decision of 3 June 2016 and those of 4 and 23 December 2015 are set aside.
2. The vacancy notices published on 3 June 2016 and the Secretary General’s decisions of 15 June and 16 August 2016 are cancelled.
3. It is unnecessary to rule on the complainant’s third complaint.
4. The Energy Charter Conference shall pay the complainant 35,000 euros in compensation under all heads.
5. The Energy Charter Conference shall also pay the complainant costs in the amount of 5,000 euros.
6. All other claims in the first and second complaints are dismissed.
Summary
In her first complaint, the complainant challenges the decision not to extend her fixed-term contract following the abolition of her post, but to give her a Project Staff contract. In her second complaint, she challenges three vacancy notices concerning C category posts and in her third complaint, she challenges the rejection of her application for two of these posts.
Judgment keywords
Keywords
complaint allowed; decision quashed; competition; fixed-term; abolition of post; non-renewal of contract
Consideration 1
Extract:
The three complaints essentially seek the same redress and are largely interdependent. It is therefore appropriate to join them in order to rule on them in the same judgment.
Keywords
joinder
Consideration 3
Extract:
The adoption of an establishment table is a general decision which, according to the case law, cannot be impugned if it requires individual implementing decisions, in which case only the latter may be impugned (see Judgments 3736, under 3, and 3628, under 4, and the case law cited therein). However, the decision not to extend the complainant’s fixed-term contract but to offer her a Project Staff contract is an individual decision implementing the amendment of the establishment table and, in support of her claims directed against that decision, the complainant is entitled to challenge the lawfulness of the said amendment, which formed the basis of the decision in question.
Reference(s)
ILOAT Judgment(s): 3628, 3736
Keywords
general decision; individual decision
Consideration 5
Extract:
A firm line of precedent has it that a decision concerning the restructuring of an international organisation’s services which leads to the abolition of a post is subject to only limited review by the Tribunal. The latter must therefore confine itself to ascertaining whether the decision was taken in accordance with the rules on competence, form or procedure, whether it involves a mistake of fact or of law, whether it constituted abuse of authority, whether it failed to take account of material facts, or whether it draws clearly mistaken conclusions from the evidence (see Judgment 3582, under 6).
Reference(s)
ILOAT Judgment(s): 3582
Keywords
reorganisation; consultation; judicial review
Considerations 9 and 13
Extract:
The Tribunal recalls that, in keeping with the principle tu patere legem quam ipse fecisti, when a text provides for the consultation of a body representing the staff before the adoption of a decision, the competent authority must follow that procedure, otherwise its decision will be unlawful (see, for example, Judgments 3883, under 20, 3671, under 4, and 1488, under 10). [...]
In accordance with the principle tu patere legem quam ipse fecisti, the Secretary General had to abide by Staff Rule 25.1 and consult Senior Management officers about the non-extension of the complainant’s contract and the proposal to give her a Project Staff contract. Furthermore, their conclusions should have been recorded in writing, in accordance with that provision.
Keywords
advisory body; patere legem
Consideration 11
Extract:
The wording of Staff Regulation 10 and Staff Rule 10.1 is clear and must be construed according to the primary rule that unambiguous words must be given their obvious and ordinary meaning (see Judgments 3701, under 4, 3213, under 6, and 1222, under 4).
Reference(s)
ILOAT Judgment(s): 1222, 3213, 3701
Keywords
interpretation; interpretation of rules
Consideration 11
Extract:
There is plainly nothing in these provisions which would entitle the complainant to have her fixed-term contract redefined. Nor is there anything in the Tribunal’s case law establishing such a right.
Keywords
conversion of contract
Consideration 14
Extract:
The Tribunal considers that a complainant may advance a new plea before the Tribunal, even if it was not placed before the internal appeal body (see Judgments 3686, under 22, and 2571, under 5).
Reference(s)
ILOAT Judgment(s): 2571, 3686
Keywords
receivability of the complaint; internal appeal; new plea
Consideration 15
Extract:
The complainant [...] submits that her employment relationship after 1 January 2016 could not be termed a Project Staff contract because her duties, which remained the same, could not be subsumed under the notion of a project, nor could they be viewed as short-term.
The Tribunal notes that according to the terms of the letter of 4 December 2015, the Secretary General offered the complainant a one-year Project Staff contract, with “the same job description” and at the same grade and step. In other words, the complainant continued to perform the same duties with the same remuneration. The only differences between the contract under which she was employed and that which was offered to her, were their name and duration. As the complainant had been employed since 1996 as Administrative Assistant under a fixed-term contract, the Secretary General could not offer her a temporary contract to continue performing exactly the same work as she was performing under a fixed-term contract without contravening the spirit of the applicable texts (see Judgment 2708, under 10).
Reference(s)
ILOAT Judgment(s): 2708
Keywords
duration of appointment; fixed-term; continuance of operations; renewal of contrat
Consideration 15
Extract:
[A]s the Tribunal has consistently held, although job abolitions may arise from a restructuring, they must be justified by real needs and not be immediately followed by the creation of equivalent posts (see Judgments 3422, under 2, and 2156, under 8).
Reference(s)
ILOAT Judgment(s): 2156, 3422
Keywords
abolition of post
Consideration 17
Extract:
Ordinarily, a vacancy notice is neither a final administrative decision nor a decision adversely affecting an individual staff member (see Judgment 2540, under 22). However, there may be circumstances where a vacancy notice can have an adverse effect. This is the case here. The vacancy notices to which the complainant responded and which concerned positions that were intended to replace hers adversely affect her in that they are connected with the non-extension of her fixed-term contract flowing from the abolition of her post.
Keywords
injury; vacancy
Consideration 19
Extract:
In the circumstances of the case, there are no grounds for ordering the complainant’s reinstatement, given the amount of time that has passed, and bearing in mind the fact that, as already stated, the complainant did not hold a contract of indefinite duration and that the organisation is facing financial difficulties.
Keywords
reinstatement
Consideration 20
Extract:
When assessing these damages, account will be taken of the fact that, although she had been in the Secretariat’s service since 1 April 1996, she had held a fixed-term contract and thus did not have any right to have it extended until she reached retirement age. Account will also be taken of the fact that, after her fixed-term contract was not extended, she continued for a period of one year to earn the same amount of salary as she had previously received.
Keywords
damages
Consideration 7
Extract:
Staff Rules 4.1 and 4.3 stipulate that the Secretary General must obtain the Staff Committee’s opinion before adopting his position. He is free to follow or to reject that opinion. He may criticise it and explain why he cannot endorse it, but he cannot lawfully consult each staff member individually instead of consulting the properly constituted Staff Committee.
The evidence in the file also shows that town hall meetings were indeed held, but they cannot make up for the lack of a Staff Committee opinion or remedy a flaw relating to its consultation.
Keywords
advisory body; patere legem
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