Judgment No. 4092
Decision
1. If WHO considers it possible, in accordance with point 2 of the decision in Judgment 3871, to reinstate the complainant in WHO, it shall fulfil the obligations set out in consideration 8 of the present judgment.
2. All other claims are dismissed.
Summary
The complainant asks the Tribunal to order WHO to comply with the obligations imposed on it by Judgment 3871 and, in particular, to reinstate him with all legal consequences.
Judgment keywords
Reference(s)
Jugement(s) TAOIT: 3871
Keywords
application for execution; complaint allowed; reinstatement
Consideration 4
Extract:
It should be recalled that the Tribunal’s judgments, which according to Article VI of its Statute are “final and without appeal” and which have res judicata authority, are immediately operative (see, for example, Judgments 3003, consideration 12, and 3152, consideration 11). As they may not later be called into question except when an application for review is allowed, they must be executed by the parties as ruled (see, for example, Judgments 3566, consideration 6, and 3635, consideration 4). The parties must work together in good faith to execute the judgment (see, for example, Judgments 2684, consideration 6, and 3823, consideration 4).
Reference(s)
Jugement(s) TAOIT: 2684, 3003, 3152, 3566, 3635, 3823
Keywords
application for execution; res judicata; good faith
Consideration 7
Extract:
[T]he only remaining point at issue is to determine the effects of the reinstatement order, with all the legal consequences that this entails, effective from the date of his unlawful dismissal.
WHO argues that the requirements of the above-mentioned point 2 of the decision in Judgment 3871 would be satisfied by considering the period from that date – namely 8 March 2010 – to the date of the complainant’s actual reinstatement in his new post as a period of special leave without pay. In this respect, WHO submits that this is an adequate means to restore the complainant’s former status as a staff member holding a continuing appointment, thereby exempting him from the requirement of a probationary period in his new post and enabling him to be regarded as having maintained uninterrupted employment with WHO since his unlawful dismissal, as a period of special leave is regarded under the regulations as a period of service. Moreover, WHO emphasizes that, under the terms of this solution, it would pay the contributions to the United Nations Joint Staff Pension Fund and the sickness and accident insurance scheme corresponding to the complainant’s employment for this period.
However, the Tribunal cannot accept WHO’s line of argument. As the Tribunal has stated on many occasions in its case law, when a reinstatement order is applied retroactively to the date when the official’s employment was unlawfully terminated, this implies that the official is considered as having remained in service after that date under the same conditions as before and is therefore entitled to the salary and other financial benefits that he would have received if this had actually been the case (see, for example, Judgments 1384, consideration 18(a), 1447, consideration 17, 2261, consideration 16, 2468, consideration 19, and 3723, consideration 8). The reinstatement “with all legal consequences that this entails” referred to in point 2 of the decision in Judgment 3871 can therefore only be construed as having such effects. Moreover, the Tribunal’s intention in this regard was made all the more clear by the fact that it also recalled, in consideration 3 of the judgment, that, since the decision to dismiss him had been set aside, the complainant was entitled in principle to the restoration of the status quo ante, which included payment of the remuneration to which he would have been entitled if he had continued to perform his duties.
Reference(s)
Jugement(s) TAOIT: 1384, 1447, 2261, 2468, 3723, 3871
Keywords
reinstatement; unpaid leave
Consideration 7
Extract:
[I]f WHO considered that the decision in Judgment 3871 presented any uncertainty or ambiguity on this point, it ought to have filed with the Tribunal an application for interpretation of the judgment, but it did not do this.
Reference(s)
Jugement(s) TAOIT: 3871
Keywords
application for interpretation
Consideration 8
Extract:
[T]he reinstatement with all legal consequences referred to in Judgment 3871 implies in the present case that WHO must pay the complainant the equivalent of the salary and benefits of all kinds which he would have received if the execution of his contract had continued under normal conditions during this period, less the amounts already awarded to him pursuant to the Director-General’s decision of 24 December 2014 (except those awarded as compensation for the undue length of the internal appeal proceedings and as costs relating to those proceedings) and any earnings received from other sources during that period. WHO must also ensure that the complainant’s pension rights and his affiliation to the provident or social security schemes are maintained for the same period.
Reference(s)
Jugement(s) TAOIT: 3871
Keywords
reinstatement
Consideration 9
Extract:
[I]t must be emphasized that WHO does not really have such freedom [to reinstate the complainant] since point 2 of the decision in Judgment 3871 requires it to reinstate the complainant “as far as possible”.
Keywords
execution of judgment; reinstatement
Consideration 10
Extract:
The complainant presents, for the first time in his rejoinder, various claims for compensation for injuries that he considers he has suffered as a result of WHO’s conduct. However, according to the Tribunal’s case law, a complainant may not, in her or his rejoinder, enter new claims not contained in the original complaint (see, for example, Judgments 960, consideration 8, 1768, consideration 5, and 2996, consideration 6). This case law also applies to applications for execution (see Judgment 3207, consideration 6). These new claims must therefore be dismissed.
Reference(s)
Jugement(s) TAOIT: 960, 1768, 2996, 3207
Keywords
application for execution; new claim; rejoinder
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