Judgment No. 4844
Decision
1. The decision of the Secretary General of 31 August 2021 as well as the decision of 28 November 2019 are set aside.
2. Interpol shall pay the complainant 5,000 euros in moral damages.
3. It shall also pay him 7,000 euros in costs.
4. All other claims are dismissed.
Summary
The complainant challenges the decision to suppress his post.
Judgment keywords
Keywords
complaint allowed; abolition of post; reorganisation
Consideration 2
Extract:
In its reply, the Organization asks the Tribunal to order the joinder of these two complaints, on the grounds that the two internal appeals lodged by the complainant against the initial decisions [...] were joined by order of the Joint Appeals Committee, that the two complaints are “inseparably” linked and that joining them would allow savings to be made on the management costs that would be incurred if the Tribunal were to deal with the cases separately.
The complainant states that he is strongly opposed to this request for joinder, contending in particular that, “in advocating a joinder of cases before the Tribunal on economic grounds”, the Organization breaches its own rules concerning the joinder of internal appeals, causes delays to the appeal procedure and adversely affects the right of appeal, both administrative and contentious, by making the conditions for the exercise of that right more stringent.
The Tribunal recalls its case law, according to which, in principle, the touchstone for the joinder of complaints is that they involve the same or similar questions of fact and law, and it is not sufficient that they stem from the same continuum of events (see Judgment 4753, consideration 6). Recently, the Tribunal has specifically stated that the cost of judgments is an irrelevant consideration in that regard (see Judgment 4822, consideration 4).
In the present case, the Tribunal acknowledges that there is a certain connection between the decision to suppress the complainant’s post [...] and the decision to terminate his appointment when it was not possible to reassign him thereafter. However, the decisions in question are different in nature, the legal context for each is, in part, individual, and the fundamental issues raised are different. It must also be noted that the two decisions are not entirely interdependent, since a measure taken to suppress a post could be followed by a reassignment decision, the outcome of which would be completely different from a termination of appointment. It is irrelevant in this respect that the Joint Appeals Committee, acting within its own prerogative, considered it appropriate to join the two internal appeals that had been referred to it.
For these reasons, the Tribunal will not order that the two complaints be joined in the light of the aforementioned case law.
Reference(s)
ILOAT Judgment(s): 4753, 4822
Keywords
joinder; financial considerations
Consideration 3
Extract:
The Tribunal has consistently held that a decision concerning the restructuring of an international organisation’s services, including one involving the abolition of a post, lies at the discretion of the executive head of the organisation and is therefore subject to only limited review. The Tribunal must verify whether this decision was taken in accordance with the rules on competence, form or procedure, whether it involves an error of fact or law, whether it constituted misuse of authority, whether it failed to take account of material facts or whether it draws clearly incorrect conclusions from the evidence (see, for example, Judgments 4139, consideration 2, 4099, consideration 3, 3582, consideration 6, 2933, consideration 10, 2510, consideration 10, and 1131, consideration 5).
Reference(s)
ILOAT Judgment(s): 1131, 2510, 2933, 3582, 4099, 4139
Keywords
abolition of post; reorganisation; discretion; role of the tribunal
Considerations 4, 6 and 7
Extract:
The complainant submits that the decision to suppress his post, which fell within the remit of the Secretary General’s competence, was taken by the Director of Human Resources Management, to whom the relevant authority had not been delegated. [...]
Admittedly, nothing in the Staff Manual expressly specifies the authority competent to decide, prior to a termination of appointment, to suppress a post with the likelihood that a termination of appointment will ensue. However, it is clear that this authority can only be, in the absence of an express delegation of power to that effect, the Secretary General himself, by virtue of the general authority conferred upon him as the executive head of the Organization.
In the present case, it must be noted that Interpol has not been able to produce before the Tribunal a delegation of power to the Director of Human Resources Management enabling her to take the [contested] decision [...].
It follows from the foregoing that the decision of the Director of Human Resources Management [...] and, consequently, the decision of the Secretary General [...] must be set aside for that reason.
Keywords
delegated authority
Considerations 6 and 8
Extract:
Interpol maintains that the distinction between the decision to suppress the post and the subsequent decision to terminate the appointment following this suppression is artificial. [...] Those are two separate decisions, one of which does not necessarily lead to the other, and which, in principle, do not take place simultaneously.
[...]
To the extent that the decision to suppress the post did not, in itself, bring about the termination of appointment, the Tribunal will not award material damages for that setting aside.
Keywords
abolition of post; termination of employment
Consideration 11
Extract:
Lastly, the complainant complains that the internal appeal procedure lasted nineteen months, which was “totally excessive” in view of the circumstances of the case. [...]
It must be recalled that the Tribunal has consistently held, firstly, that the unreasonableness of a delay in examining an internal appeal must be assessed in the light of the particular circumstances of the case and, secondly, that the amount of compensation liable to be granted under this head ordinarily depends on two essential considerations, namely the length of the delay and the effect of the delay on the employee concerned (see, for example, Judgments 4727, consideration 14, 4684, consideration 12, 4635, consideration 8, 4173, consideration 12, and 3160, consideration 17).
In the present case, the Tribunal observes that nineteen months elapsed between the date when the complainant lodged his first internal appeal [...] and the date when he was notified of the Secretary General’s decision thereon [...]. In view of the nature of the contested decision, which was liable to compromise the further maintenance of the employment relationship between the complainant and the Organization, such a delay must be considered, in absolute terms, as excessive.
However, the Tribunal notes in this regard that:
– the Organization has established that the Covid-19 pandemic and the lockdown measures imposed by the French authorities had the effect of substantially delaying, at least initially, the examination of the internal appeals by the Joint Appeals Committee, which must, in particular, follow a collegial and adversarial procedure;
– the Joint Appeals Committee had, during its investigations, found it necessary to ask the Organization for further information;
– further submissions were made by the parties to the Committee during the procedure;
– the examination of the internal appeal was delayed by various procedural incidents;
– the Secretary General, having received the Committee’s opinion, found it necessary to carry out additional checks [...];
– the additional information gathered was forwarded to the complainant [...] and he was given a deadline of one month to respond.
In these circumstances, the Tribunal considers that the time taken to issue the impugned decision [...] is not such as to warrant the award of compensation under this head.
Reference(s)
ILOAT Judgment(s): 3160, 4173, 4635, 4684, 4727
Keywords
moral injury; delay in internal procedure
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