Judgment No. 470
Decision
1. The Organization shall pay the complainant the compensation due to him under Staff Rule 1050.4 and 3,000 United States dollars in costs.
2. The other claims for relief are dismissed.
Consideration 4
Extract:
The complainant had worked for the organisation for 12 years; he was nearing retirement age; his work had never aroused criticism. "Had his post not been abolished, therefore, he would certainly have had his appointment extended. To refuse an extension to such a deserving staff member would have constituted a misuse of authority which would have entitled the Tribunal to interfere. Accordingly, it was the abolition alone which made the complainant leave".
Keywords
grounds; satisfactory service; contract; fixed-term; abolition of post; non-renewal of contract
Consideration 3(D)
Extract:
"The relationship between organization and staff is governed by the Staff Regulations, the Staff Rules and the Manual. The Regulations are supplemented by the Rules, which are elaborated on in the Manual. There is therefore a hierarchy under which the Rules may not derogate from the Regulations, nor the Manual from the Rules." A provision in the Manual which restricts the scope of a Staff Rule which neither expressly nor by implication provides for such exclusion "is at odds with the principle of the hierarchy of rules and must therefore be treated as void."
Reference(s)
Organization rules reference: ARTICLE 1050.4 OF THE PAHO STAFF RULES
Keywords
precedence of rules; staff regulations and rules; provision
Summary
Extract:
The complainant's contract expired and his post was simultaneously abolished. The organization applied the provision on the termination of temporary contracts. The Tribunal maintains that the provision on abolition of posts is applicable to temporary officials; a provision which deprives certain officials of benefiting from this provision is without effect because it does not respect the hierarchical ranking of rules.
Reference(s)
Organization rules reference: ARTICLE 1050.4 OF THE PAHO STAFF RULES
Keywords
applicable law; precedence of rules; contract; fixed-term; abolition of post; non-renewal of contract
Considerations 8-9
Extract:
The applicable provision "does not state that the official whose post has been abolished shall be entitled to full compensation for the prejudice he has suffered. Instead it contains a schedule setting out the lump sums to be paid in compensation scaled according to years of service." As to the loss of pension rights, the material provision "does not grant the official who has lost his post any compensation over and above that which is prescribed in the schedule".
Reference(s)
Organization rules reference: ARTICLE 1050.4 F THE PAHO STAFF RULES
Keywords
scale; abolition of post; pension; pension entitlements; reduction of salary; material damages
Consideration 8
Extract:
The complainant seeks reinstatement for two years. PAHO Staff Rule 1050.2 requires the Director "to take steps to try to keep on the staff someone whose post has been abolished. Such steps are not called for in this case. By his own account the complainant would have received a retirement pension a year and a half after leaving the organization. [...] There are therefore no grounds for now ordering his reinstatement."
Reference(s)
Organization rules reference: ARTICLE 1050.2 OF THE PAHO STAFF RULES
Keywords
organisation's duties; abolition of post; reassignment; retirement
Consideration 6
Extract:
The organization offered the complainant a post at a lower grade and salary in a different office; it offered to circulate his curriculum vitae to the field offices; it took his candidacy into account when filling vacancies. These measures failed to meet the requirements of the applicable staff rules, which require the organization "not just to offer the complainant any available employment [...] but to give him priority on certain conditions."
Reference(s)
Organization rules reference: ARTICLE 1050 OF THE PAHO STAFF RULES
Keywords
organisation's duties; abolition of post; reassignment; priority
Consideration 3(C)
Extract:
PAHO Staff Rule 1050.2 establishes the conditions and consequences of abolishing posts. "There is no sound reason to apply [the rule] in favour only of officials whose post is abolished during an appointment to the exclusion of those whose post is abolished at the end of the appointment. It is true that in general the former fare worse than the latter. The difference between the two is not, however, such as to warrant any difference in treatment."
Reference(s)
Organization rules reference: ARTICLE 1050.2 OF THE PAHO STAFF RULES
Keywords
equal treatment; organisation's duties; contract; fixed-term; abolition of post; non-renewal of contract; termination of employment
Consideration 7
Extract:
A letter from the Director to an official of the organization may be regarded as evidence of hostility towards the complainant as well as an act of sound administration; the telephone conversation between the Director and a member of the government is open to more than one interpretation. However, after informing the complainant in March that his appointment would end in June, the organization extended his appointment several times, "and thereby displayed genuine consideration. The Tribunal cannot therefore find that the allegation of personal prejudice is proved."
Keywords
evidence; lack of evidence; contract; fixed-term; abolition of post; non-renewal of contract; bias
Consideration 10
Extract:
"That a staff member should have been the subject of a flawed decision does not alone entitle him to compensation for moral prejudice. For that he must have suffered more severe prejudice than that normally caused by an improper decision." In this case the impugned decision "is unlikely to have had abnormal effects. In any event, insofar as it was based on lack of funds it was in no way humiliating. Moreover, the moral prejudice [...] has been mitigated by his appointment with the government".
Keywords
decision; moral injury; flaw; condition
Consideration 3(B)
Extract:
"The mere fact that [the complainant] has not since [the date his post was abolished] been replaced shows that the post has gone."
Keywords
evidence; abolition of post
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