Jugement n° 4836
Décision
1. The impugned decision of 23 August 2021 is set aside. 2. The Federation shall pay the complainant 15,000 Swiss francs in moral damages for the procedural flaw in the internal appeal procedure. 3. It shall also pay him 10,000 Swiss francs in costs. 4. All other claims are dismissed.
Synthèse
The complainant challenges his non-selection for several positions.
Mots-clés du jugement
Mots-clés
Requête admise; Procédure de sélection
Considérant 2
Extrait:
As to its role in a case where the selection of a successful candidate is challenged in a complaint, the Tribunal recalls its settled case law, stated, for example, in Judgment 4625, that in matters of appointment, the choice of the candidate to be appointed lies within the discretion of the authority competent to make the appointment within the organization concerned. Such a decision is therefore subject to only limited review. It 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, in particular, Judgments 3652, consideration 7, and 3372, consideration 12). As a result, a person who has applied for a post that an organization has decided to fill by a competition and whose application is ultimately unsuccessful must prove that the selection procedure was tainted by a serious defect. The case law further states that, 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 (see, for example, Judgment 4412, consideration 10). That is a right which every applicant must enjoy, whatever her or his hope of success may be (see, inter alia, Judgments 3209, consideration 11, and 2163, consideration 1, and the case law cited therein). The case law also states that an organization 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 organization 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 3652, consideration 7). The Tribunal also recalls that, in relation to competitions, it is not its role to replace the assessment made by the competent selection bodies with its own assessment (see, for example, Judgment 4594, consideration 8).
Référence(s)
ILOAT Judgment(s): 2163, 3209, 3372, 3652, 4412, 4594, 4625
Mots-clés
Nomination; Contrôle du Tribunal; Procédure de sélection
Considérant 5
Extrait:
[I]n accordance with a recognised general principle of law, a person cannot submit the same matter for decision in two separate proceedings (see, for example, Judgments 4778, consideration 5, 4530, consideration 7, 4085, consideration 7, 3291, consideration 6, and 2742, consideration 16).
Référence(s)
ILOAT Judgment(s): 2742, 3291, 4085, 4530, 4778
Mots-clés
Procédures parallèles
Considérant 10
Extrait:
External advertisement of vacant positions may only be done pursuant to Staff Regulation 5.4.1(d). Under its provision, vacant positions may be advertised externally, only when the position requires technical skills, experience or professional qualifications are unlikely to be available among current Federation staff, or when a different skill set and external experience for the post or within the existing team is needed. Outside of these circumstances, the Federation’s rules do not permit external recruitment. The Federation, who is required by the case law, stated, for example, in consideration 20 of Judgment 3601, to prove that the procedure it had put in place was duly followed, has not shown that it advertised the subject positions because the requirements in Staff Regulation 5.4.1(d) existed at the material time.
Référence(s)
ILOAT Judgment(s): 3601
Mots-clés
Charge de la preuve; Candidat interne; Avis de vacance; Procédure de sélection; Candidat externe; Interpretation des règles
Considérant 12
Extrait:
[B]y changing the composition of the assessment panel in the manner in which it did, which resulted in a differently constituted panel assessing the first and second tests, the Federation breached the principle of equal treatment.
Mots-clés
Egalité de traitement; Comité de sélection; Procédure de sélection
Considérant 12
Extrait:
[N]o steps were apparently taken to cancel the first selection process to which the complainant had applied, the complainant took his written test after the position had been readvertised and, as the complainant states, he was not so informed and was not informed that he was not selected. It also seems apparent, that the Federation thereby also breached its duty of care to the complainant.
Mots-clés
Devoir de sollicitude; Procédure de sélection
Considérants 13-17
Extrait:
[T]he complainant submits, in substance, that the Appeals Commission prevented him from attending the hearing of the witnesses it called to permit him to test the evidence, and, in any event, that he was not even provided with the statements of such witnesses […] The Federation relies on Judgment 4408, where the Tribunal concluded, in consideration 4, that an interview conducted as an “investigative measure” to enable an appeal body to obtain general information not relating specifically to the situation of the complainant was not a hearing where the complainant was required to be present or where the content of the discussion had to be disclosed to him or her […] It is obvious from the content of the Appeals Commission report that the information sought by the Commission was not of a general nature and that it was relating specifically to the selection procedures at issue. In these circumstances, the Tribunal considers that the complainant had a right, at least to have been apprised of the content of the interviews and to provide his comments if he so wished. Since this was not done, the complainant’s right to be heard was violated […] For this, which is an infringement of due process, he will be awarded 15,000 Swiss francs.
Référence(s)
ILOAT Judgment(s): 4408
Mots-clés
Organe de recours interne; Recours interne; Débat oral; Application des règles de procédure; Procédure interne; Indemnité pour tort moral; Droit d'être entendu; Témoin
Considérant 17
Extrait:
As it cannot be said with certainty that the complainant would have been the successful candidate had the selection processes for the subject positions not been flawed, he is not entitled to an award of material damages for the loss of one year’s salary or for loss of opportunity he seeks.
Mots-clés
Procédure de sélection; Dommages-intérêts pour tort matériel
Considérant 18
Extrait:
Situations will arise where it is appropriate to set aside the selection process and remit the matter to the Federation for it to conduct new selection competitions for the contested positions. This will however not be done in this case as it seems that no practical purpose will be served by doing so, given, particularly, that the complainant is no longer a staff member at the Federation.
Mots-clés
Renvoi à l'organisation; Ancien fonctionnaire; Procédure de sélection
Considérant 19
Extrait:
The complainant’s claim to be awarded such other redress as the Tribunal deems necessary, just and fair should be rejected as it is too vague to be receivable (see, for example, Judgment 4602, consideration 8).
Référence(s)
ILOAT Judgment(s): 4602
Mots-clés
Conditions de forme
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