Judgment 810
61st Session, 1987
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
"What good faith requires is that when someone is transferred he should be given proper notice, and not just of a vague intention, but of the nature of the post he is to get and of the duty station." The complainant did not accept the transfer and was dismissed. The decision is quashed and the Tribunal orders the restoration of the complainant's status as an official.
Keywords:
duty station; duty to inform; good faith; notice; organisation's duties; post description; reconstruction of career; refusal; termination of employment; transfer;
Consideration 7
Extract:
"A transfer decision that is made known five days before it comes into effect leaves the official no time in which to act or even to think".
Keywords:
notice; time limit; transfer;
Judgment 809
61st Session, 1987
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 20
Extract:
"[The] posts and the grade they carried were such that the decision was tantamount to a sanction. An organisation is bound to show due regard to the dignity and good name of its staff".
Keywords:
assignment; downgrading; grade; hidden disciplinary measure; moral injury; organisation's duties; post; professional injury; respect for dignity; transfer;
Consideration 5
Extract:
The letter goes on to speak of a "decision" to have the complainant perform other duties. The word "decision" denotes not mere intent but a positive act which was of legal effect. Though the decision was incomplete because the nature of the new post - an essential element - was not stated, the letter made it known to the complainant that there was no question of keeping him on in the post he then held.
Keywords:
decision; transfer;
Judgment 808
61st Session, 1987
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 22
Extract:
"The Director-General may assign the staff as the organisation's interests require provided he respects their grades and the grading structure."
Keywords:
assignment; discretion; limits; organisation's interest; transfer;
Consideration 18
Extract:
The complainant objects to her transfer from a G.7 post she held in the document services branch to the post of assistant cashier at the same grade because the new post did not suit her qualifications. The Tribunal holds that "the transfer did not cause the complainant any drop in grade, so that her basic rights under the Staff Regulations are unimpaired. The only question possibly at issue is whether her new post comprises duties and responsibilities that warrant G.7 and, as the organisation has explained, there is no question but that it does since the duties of assistant cashier have always carried that grade."
Keywords:
grade; organisation's duties; transfer;
Judgment 723
58th Session, 1986
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"The Director-General's implied endorsement of the performance report, his postponement of the increment and the transfer are all discretionary decisions and, moreover, ones that fall within an area in which the Tribunal will not ordinarily interfere."
Keywords:
discretion; increment withheld; judicial review; performance report; rating; transfer; unsatisfactory service;
Judgment 692
57th Session, 1985
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary
Extract:
Unlike special leave, leave required in the service of the organisation must be granted, as provided by the regulations, according to circumstances and is not otherwise subject to a time limit. The 12-day leave requested by the complainant is justified for transfer from one duty-post to another, i.e. for professional purposes. The Tribunal allows the complaint.
Keywords:
amendment to the rules; duty station; grounds; leave; request by a party; transfer;
Judgment 685
57th Session, 1985
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary
Extract:
The complainant objects to the detriment to himself and his family caused by his assignment to Nepal. So the decision he impugns is the one informing him of his transfer, of which he got notice in March 1981. Since he waited until March 1983 to put his case to the Appeal Board the complaint is irreceivable.
Keywords:
consequence; internal appeal; receivability of the complaint; start of time limit; time bar; time limit; transfer;
Judgment 631
54th Session, 1984
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 29
Extract:
"The Director-General took the impugned decision in the exercise of his discretion. This means that the Tribunal will not interfere with it merely because they think it to be wrong. They must be satisfied, to put it briefly, that it was not only wrong but wrongly motivated or based on an error of law or a complete misapprehension of the facts. Moreover, where [...] the interests of the organization form the sole criterion for the decision, the Tribunal will be reluctant to interfere since the Director-General must normally be regarded as the best judge of what those interests are."
Keywords:
assignment; discretion; judicial review; organisation's interest; transfer;
Consideration 27
Extract:
The Staff Rule on reduction in grade is applicable: it is not concerned with the personal grade of the staff member but with the grade of the post. "The Tribunal agrees that the decision was in substance a demotion. This follows almost automatically from the fact that it was a transfer from a P.6 to a P.5 post with lower responsibility. [...] To be diminished in responsibility and effectiveness can be just as hurtful as to be lowered in grade."
Keywords:
assignment; downgrading; grade; post; transfer;
Consideration 28
Extract:
The complainant retains his P.6 grade on a personal basis, but is transferred, without reasons having been given, to a P.5 post. The Tribunal regards this as downgrading of function. "There is [...] much to be said for the argument that, whether or not there is a specific provision in the Staff Rules, as a matter of contractual obligation the administration ought not to take a decision injuriously affecting a staff member's career without first, as a matter of natural justice, giving him the reasons for the decision and getting his response."
Keywords:
downgrading; duty to substantiate decision; grade; organisation's duties; post; professional injury; transfer;
Consideration 25
Extract:
"It was not a proposal to reassign but an immediate and unconditional decision to reassign made irrespective of whether or not the Director-General would permit the retention of the P.6 grade on a personal basis. Such a decision could lawfully be made only on the ground of the complainant's unsatisfactory performance or misconduct." In breach of the applicable rules, the decision was given without reasons and taken without having given the complainant an opportunity to reply. The decision must be regarded as a demotion.
Keywords:
downgrading; grounds; transfer;
Consideration 34
Extract:
The Tribunal finds downgrading of function and prejudice. The complainant asks that he be reassigned to a post "fully commensurate with his grade, experience and abilities: or [...] that he should be placed on [...] leave with pay until such time as a suitable post became available. The Tribunal considers this solution to be appropriate. The Tribunal would find it difficult to believe that such a post either at WHO headquarters or elsewhere could not be found for a man in the early fifties with an unbroken record of achievement in the service of the organization for nearly twenty years."
Keywords:
bias; downgrading; transfer;
Judgment 630
54th Session, 1984
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
All staff members should hold a post and perform the duties pertaining thereto. This "principle will not in practice have the effect of impairing the legitimate authority of the head of branch. Work requirements will determine how staff are to be assigned, and the result may be that a staff member has some of his duties taken away from him or is set to work that does not quite match his inclinations or even his talents. The supervisor is also entitled to propose that a staff member be moved [...] but so long as the staff member remains in a particular branch the head must see to it that he is given real work."
Keywords:
assignment; official; organisation's duties; organisation's interest; post; qualifications; refusal to assign work; request by a party; right; staff member's duties; supervisor; transfer;
Judgment 576
51st Session, 1983
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
The only point in favour of the complainant's claim [he says that he was transferred because of his trade union activities] is the suddenness of the decision, which came only a few days after he had attended meetings as a staff representative. "But the coincidence does not suffice to establish any misuse of authority. The circumstances of his [transfer] may be regrettable, but they have no effect on the lawfulness of the decision."
Keywords:
abuse of power; lack of evidence; misuse of authority; staff union activity; transfer;
Judgment 535
49th Session, 1982
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 1 and 3
Extract:
A staff rule stipulates that "the general method of filling vacancies is to hold a competition, and reassignment without promotion in the interest of the [organization] is an exception. [...] Whether a post should, in the interest of the Bureau, be filled without holding a competition is a matter of discretion".
Keywords:
competition; discretion; exception; organisation's duties; organisation's interest; transfer; vacancy;
Judgment 534
49th Session, 1982
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 1
Extract:
In case of financial difficulties, transfers must be considered to keep down the number of dismissals. Staff Regulations and the terms of individual staff members' contracts limit the discretion of the Director-General. "The executive head may not of his own accord alter the staff member's grade, reduce his salary or injure his dignity."
Keywords:
budgetary reasons; discretion; transfer;
Consideration 3
Extract:
The complainant alleges that there were several vacancies at the time of his transfer, but his contention is not borne out by the evidence. "Even supposing the Director-General could have found him some other assignment - though that is not established - the decision would have been made in the exercise of discretionary authority."
Keywords:
assignment; discretion; transfer;
Consideration 2
Extract:
Transfer, without change in his terms of employment to a new linguistic unit. "He will indeed never be a professional translator. Yet it was reasonable for the Director-General to expect him to be able to do worthwhile work in his new assignment. It was in the Director-General's discretion to make the transfer, and the decision was neither detrimental to the complainant's dignity nor in breach of his rights under the terms of his appointment."
Keywords:
assignment; discretion; organisation's duties; transfer;
Consideration 4
Extract:
"The complainant retorts that he was discriminated against on the grounds of his nationality and religion. There is no evidence in what the ILO did of any such abuse of authority. Besides, pending the hearing of this case by the Tribunal the ILO has offered the complainant alternative employment which he seems willing to accept."
Keywords:
bias; lack of evidence; nationality; transfer;
Judgment 523
49th Session, 1982
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary
Extract:
The complainant's post having been abolished neither in substance nor in form (but transferred to another duty station), the termination of his contract was unlawful. On the alternative view, the complainant would find himself deprived of the right given to staff members in the general service category under a rule which makes transfer to a new station subject to the staff member's consent. As reinstatement is not an appropriate remedy, the organization must pay the complainant $40,000 as compensation and $6,000 in costs.
Keywords:
abolition of post; amendment to the rules; duty station; general service category; termination of employment; terms of appointment; transfer;
Judgment 494
48th Session, 1982
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 9-10
Extract:
"There is no indication in the dossier that if the proper procedure had been observed before termination the complainant would have made use of it to change her attitude; and she has in fact declined reinstatement. She has not therefore shown any financial loss that she would not have incurred anyway. "It may well be that, as she alleges, 'because of the abrupt manner in which she was terminated, there has been speculation that she was engaged in some wrong doing.' She is entitled to a sum sufficient to mark the fact that her dismissal was illegal."
Keywords:
flaw; lack of injury; material injury; moral injury; offer; procedural flaw; refusal; reinstatement; termination of employment; transfer;
Summary
Extract:
The complainant refused to comply with a change of duty station. She was dismissed in an abrupt and precipitate manner. The transfer in question was warranted on independent grounds; no proof of prejudice has been given; the complainant was able to study the post description which had been offered to her. No claim for compensation based on the invalidity of the transfer. But compensation for moral prejudice plus costs.
Keywords:
moral injury; refusal; termination of employment; transfer;
Consideration 6
Extract:
"The Director was being extremely critical of the activities of the Staff Committee, considering it as an unrepresentative minority of the staff association [...]. The suggestion made by the complainant that the transfer was designed to impede her activities as vice-chairperson by removing her from headquarters and to punish her for the Committee's attitude is therefore one which must be seriously examined. [...] Even if it were to be assumed that the Director was in general pursuing a policy of handicapping or penalising staff activities, he did not in this case carry it through [...]. There is no evidence of any personal hostility [...]. The transfer was a transfer of a programme rather than of a person."
Keywords:
bias; evidence; hidden disciplinary measure; lack of evidence; reorganisation; staff representative; staff union activity; transfer;
Judgment 488
48th Session, 1982
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3
Extract:
"On his last return to headquarters the complainant was not selected for any of the P.5 posts which were vacant at the time and in which he expressed interest. But the posts were filled in accordance with the normal selection procedure, the complainant's applications being considered together with the others, and the Tribunal holds that the procedure followed by the organization was correct and that there was no breach of any of the applicable rules."
Keywords:
appointment; assignment; headquarters; judicial review; procedure before the tribunal; transfer; vacancy;
Judgment 476
47th Session, 1982
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3
Extract:
The complainant's "grievance, though justified, is without effect. The Tribunal cannot but deplore any undue protraction of the appeal proceedings, which is to the prejudice of the organization as well as of the complainant. But it cannot criticise the actual transfer without due regard to the lawfulness of the decision. Besides, the complainant's plea carries the less weight in that he himself was partly to blame for the delay."
Keywords:
administrative delay; cause; complainant; delay; transfer;
Consideration 11
Extract:
"It is not established that the complainant's supervisors [in deciding in favour of the transfer] committed any abuse of authority, i.e. that they acted on considerations extraneous to the organization's interests."
Keywords:
abuse of power; lack of evidence; misuse of authority; transfer;
Consideration 10
Extract:
"In view of [the complainant's] supervisors' categorical and unanimous opinion [...] the Director-General did not exceed the limits of his discretion in concluding that the transfer was in the [organisation's] interests and therefore in accordance with [the applicable] provision. [...] The conclusions he drew from the evidence may have been arguable, but they were not clearly mistaken".
Keywords:
advisory opinion; discretion; organisation's interest; supervisor; transfer;
Consideration 12
Extract:
"It is true that the transfer must have aroused doubts about [the complainant's] abilities in the minds of those who had dealings with him. But that was because of the nature of the decision, not because of the behaviour of [the organization's] officials. His supervisors could not have avoided making his transfer public. But the words they used do not seem to be open to serious criticism. In particular one official, while expressing the hope that the change would serve the [organization's] interests, described the work done by the complainant as excellent." No compensation.
Keywords:
lack of injury; professional injury; transfer;
Judgment 450
46th Session, 1981
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary
Extract:
The decision to transfer the complainant falls within the scope of the Director's discretionary authority and, in view of her shortcomings and strained relations with her supervisors, that decision does not appear to be flawed. Nor has any causal link been established between her trade union activities and the decision to transfer her. The circumstances which gave rise to the moral injury for which she claims compensation were ones that the complainant was at least in part responsible for. The organization may not therefore be held liable. The complaint is dismissed.
Keywords:
cause; complainant; moral injury; staff union activity; transfer;
Consideration 5
Extract:
The complainant's "pleas in support of her contention [that the organization manifested prejudice against her] therefore do not appear to carry any greater weight than those put forward against it. Accordingly, in implying that her performance and her relations with her supervisors were unsatisfactory the [decision to transfer her] is not tainted with any error of fact and did not leave essential facts out of account. Indeed it came within the scope of the Director's discretion."
Keywords:
judicial review; transfer; unsatisfactory service; work appraisal; working relations;
Consideration 9
Extract:
Even if there were a breach of the Staff Rules the [transfer decision the complainant impugns] would be set aside only if the breach was such as to cause the complainant prejudice, for example by preventing the regular appraisal of her performance.
Keywords:
lack of injury; organisation's duties; post description; transfer;
Judgment 447
46th Session, 1981
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
There had been tension between the Director and the staff association. The complainant, a member of the association, was transferred against her wishes. She insists that she was the victim of a disguised disciplinary sanction: she was transferred hastily and over her objections. But the transfer was part of a general plan which had been drawn up much earlier. There is nothing to suggest that its intention was to mask a sanction. The complainant was not especially active in the staff association. There being uncertainty about the real grounds for the impugned decision, the Tribunal will not regard as proved her allegation of a breach of the right of association.
Keywords:
evidence; freedom of association; hidden disciplinary measure; lack of evidence; staff representative; staff union; staff union activity; transfer;
Consideration 11
Extract:
The impugned decision did not take account of the complainant's particular interests and was tainted with bias. The impugned decision is unlawful and the complainant is therefore entitled to compensation for moral prejudice provided that there was serious injury to her feelings. She was certainly affected by the suddenness of the decision, which she regarded as unfair punishment. moreover, her reputation very probably did suffer. Accordingly, the compensation for moral prejudice is determined ex aequo et bono.
Keywords:
bias; equity; moral injury; professional injury; staff member's interest; transfer;
Consideration 8
Extract:
Under the material provision, an official may appeal against any measure or decision tainted with personal prejudice against him; it is sufficient that he has suffered treatment which is not warranted on any objective grounds. "That is so in the present instance. Despite her age and work record the complainant was suddenly transferred to a post which did not suit her and no thought was ever given to finding a solution which would more closely match her legitimate interests. Only prejudice can account for such a lack of consideration".
Keywords:
bias; evidence; grounds; staff member's interest; transfer;
Consideration 3
Extract:
If a decision is based on provisions which grant the Director wide discretionary authority, it can be set aside by the Tribunal only if it was taken without authority, or violated a rule of form or procedure, or was based on an error of fact or or law, or if essential facts were overlooked, or if there was misuse of authority, or if mistaken conclusions were drawn from the facts.
Keywords:
discretion; judicial review; transfer;
Consideration 4
Extract:
Under the Staff Rules the Director, in making a transfer decision, should take account of an official's own interests, provided they are not at variance with the organization's wider interests. Before transferring the complainant against her wishes, the Director ought to have made sure that there was no other staff member fit and willing to take up the material post; he should if necessary have held a competition. In view of her age, seniority and outstanding work record, the complainant was entitled to better treatment.
Keywords:
organisation's duties; organisation's interest; staff member's interest; transfer;
Judgment 441
45th Session, 1980
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
Under the applicable provision, staff members serving at the time of the Institute's integration into the organisation were transferred, retaining their previously acquired status. "Inasmuch as an official is transferred to an organisation he is not deemed 'appointed' by it."
Keywords:
appointment; merger; transfer;
Judgment 411
44th Session, 1980
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
The chief element in the compensation to which complainant is entitled is the loss of the enjoyment of his job. "True, the new job was a 'comedown' and as such might have damaged him professionally if the damage had not already been done by the events recorded in Judgment No. 361: for such damage compensation has been paid."
Reference(s)
ILOAT Judgment(s): 361
Keywords:
injury; material damages; professional injury; transfer;
Consideration 7
Extract:
The complainant asks for the rescission of the assignment in question. "Since the complainant has now resigned from the organization, the organization submits that no purpose would be served by quashing the [...] assignment. However, the complainant protested strongly at the time against the assignment as unworthy of him and he is entitled to the formal order if he wishes it."
Keywords:
application for quashing; assignment; cause of action; separation from service; transfer;
Consideration 6
Extract:
"The complainant is being compensated, not for the lack of a worthwhile job - the organization does not guarantee that - but for the slackness and delay on the part of the administration in looking for one for him."
Keywords:
administrative delay; assignment; injury; transfer;
Judgment 404
43rd Session, 1980
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
"The complainant maintains that the organisation was remiss in facilitating her transfer to some other international organisation. Her plea can succeed only if the organisation was under a duty to find for her or help her to find other employment. It was not".
Keywords:
duty of care; fixed-term; non-renewal of contract; organisation's duties; transfer;
