Judgment No. 4086
Decision
1. The impugned decision of 21 October 2014 is set aside.
2. WIPO shall pay the complainant 5,000 Swiss francs in moral damages.
3. WIPO shall pay the complainant 7,000 Swiss francs in costs.
4. All other claims are dismissed.
Summary
The complainant challenges the decision to maintain her contested job description.
Judgment keywords
Keywords
complaint allowed; decision quashed; post description
Consideration 1
Extract:
WIPO’s contention that this complaint is moot as the complainant was transferred from the post for which the contested job description was issued is rejected. This is because the alleged failure mentioned above may nevertheless have produced legal effects (see, for example, Judgment 3648, under 3).
Reference(s)
Jugement(s) TAOIT: 3648
Keywords
claim moot
Consideration 8
Extract:
WIPO asks the Tribunal to consider joining this complaint with the complainant’s fourth complaint in which she challenges decision to transfer her to the newly created [...] Section [...] and the appointment of Ms [...] as Head of that Section. As the complainant has however pointed out, the scope of this complaint is not within the scope of the fourth complaint. Accordingly the Tribunal does not find it convenient to join them.
Keywords
joinder
Consideration 9
Extract:
The complainant applies for an oral hearing pursuant to Article 12, paragraph 1, of the Tribunal’s Rules. However, as the issues raised in the proceedings can be resolved having regard to the detailed pleas and the documentary evidence which the parties provide, the application is dismissed.
Reference(s)
ILOAT reference: Article 12, paragraph 1, of the Rules
Keywords
oral proceedings
Consideration 9
Extract:
The application which was made for the production of documents is also dismissed because it is cast in the most general and imprecise terms which are an impermissible “fishing expedition” (see, for example, Judgments 2510, under 7, and 3345, under 9).
Reference(s)
Jugement(s) TAOIT: 2510, 3345
Keywords
disclosure of evidence; fishing expedition
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)
Jugement(s) TAOIT: 1343, 2229, 2360, 2373
Keywords
general principle; organisation's duties; respect for dignity; assignment; transfer; post classification; grade; post description; post held by the complainant; judicial review; discretion; reclassification
Consideration 13
Extract:
[T]he alleged failure to provide the subject job description [did not] amount to constructive dismissal, as WIPO did not thereby breach the complainant’s contract in such a way as to indicate that it would no longer have been bound by it (see, for example, Judgment 2745, under 13).
Reference(s)
Jugement(s) TAOIT: 2745
Keywords
post description; contract; constructive dismissal
Consideration 16
Extract:
[I]nasmuch as the complainant was awarded moral damages in Judgment 4084 for essentially the same breach, moral damages will not be awarded for this claim in the present complaint.
Reference(s)
Jugement(s) TAOIT: 4084
Keywords
moral injury; res judicata
Consideration 17
Extract:
[A]lthough WIPO was probably primarily concerned with the results of the restructuring exercise and had no desire to “downgrade” the complainant’s post in the strict sense, it did not act in accordance with its duty of care towards the complainant.
Keywords
post description; reorganisation; duty of care
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