Transfer (255, 256, 257,-666)
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Judgment 4852
138th Session, 2024
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the appointment, by lateral transfer, of another official to the position of Director, FAO Liaison Office in Geneva.
Consideration 6
Extract:
[I]t cannot be assumed that one member of staff has an unfettered right to challenge the transfer of another member of staff (see Judgment 2670, consideration 5).
Reference(s)
ILOAT Judgment(s): 2670
Keywords:
appointment without competition; cause of action; transfer;
Judgment 4830
138th Session, 2024
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the implied decision dismissing his request for his administrative situation to be regularised, the decision ordering his transfer, the decision to award him a special post allowance in that it excluded a certain period and the amount in question was insufficient, and the decision announcing his promotion in that it was not retroactive and did not place him on step 7 of grade G.4.
Consideration 15
Extract:
[T]he organisation insists on the fact that the complainant was informed in advance of the reasons for his transfer, as is required by the case law (see, for example, Judgment 4690, consideration 6) [...].
Reference(s)
ILOAT Judgment(s): 4690
Keywords:
duty to inform; motivation; transfer;
Consideration 17
Extract:
[T]he complainant is justified in maintaining that the unlawfulness of the contested transfer decision caused him a certain moral injury. The lack of advance information provided to the complainant about the responsibilities involved in the new duties he was to assume were such as to cause him anxiety and stress and adversely affected his rights, which is characteristic of that form of injury. The Tribunal considers that this injury will be fairly redressed by awarding him damages in the amount of 7,000 euros.
Keywords:
moral injury; transfer;
Consideration 15
Extract:
[T]he Tribunal recalls that it is well established in its case law that a decision to transfer an employee of an international organisation, which, as with any appointment decision, lies within the discretion of the executive head of the organisation concerned, is, for that reason, subject to only limited review. Therefore, such a decision may be set aside only if it was taken ultra vires, if it shows formal or procedural flaws or a mistake of fact or law, if some material fact was overlooked, if there was abuse of authority or if a clearly wrong conclusion was drawn from the evidence (see, for example, Judgments 4609, consideration 4, 4451, consideration 6, 3488, consideration 3, 2635, consideration 5, 1556, consideration 5, or 883, consideration 5).
Reference(s)
ILOAT Judgment(s): 883, 1556, 2635, 3488, 4451, 4609
Keywords:
judicial review; transfer;
Consideration 15
Extract:
[T]he Tribunal’s case law requires that a staff member who is to be transferred be informed in advance of the nature of the post proposed for her or him and, in particular, of the duties involved, so that she or he is able to comment on those new duties as well (see, for example, Judgments 4609, consideration 8, 4451, consideration 11, 3662, consideration 5, 1556, considerations 10 and 12, or 810, consideration 7).
Reference(s)
ILOAT Judgment(s): 810, 1556, 3662, 4451, 4609
Keywords:
consultation; duty to inform; post description; transfer;
Judgment keywords
Keywords:
complaint allowed; promotion; receivability of the complaint; special post allowance; transfer;
Consideration 16
Extract:
The Tribunal notes that the complainant does not seek compensation for the material injury he allegedly suffered as a result of the unlawfulness of the transfer decision [...]. Even if the complainant had made such a request, it would not, in any event, be appropriate to grant it, since the file shows that he received for that post a [special post allowance], retroactive to the date on which his transfer took effect.
Keywords:
material injury; special post allowance; transfer;
Judgment 4773
137th Session, 2024
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the appointment of another official by lateral transfer.
Judgment keywords
Keywords:
appointment without competition; complaint dismissed; transfer;
Judgment 4771
137th Session, 2024
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the appointment of another official by lateral transfer.
Judgment keywords
Keywords:
appointment without competition; complaint dismissed; transfer;
Judgment 4769
137th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns what he refers to as decisions concerning Eurocontrol Agency’s reorganisation, and his transfer following that reorganisation.
Judgment keywords
Keywords:
complaint dismissed; receivability of the complaint; reorganisation; transfer;
Judgment 4768
137th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns what he refers to as decisions concerning Eurocontrol Agency’s reorganisation and his transfer following that reorganisation.
Judgment keywords
Keywords:
complaint allowed; reorganisation; transfer;
Consideration 12
Extract:
In respect of staff transfers, the Tribunal stated the following in Judgment 4687, consideration 5, which refers to Judgments 4595, consideration 2, and 4427, consideration 2:
“Consistent precedent has it that an executive head of an international organization has wide discretionary powers to manage the affairs of the organization pursuant to the policy directives and its rules, and that such decisions are consequently subject to only limited review. The Tribunal will ascertain whether a transfer decision is taken in accordance with the relevant rules on competence, form or procedure; whether it rests upon a mistake of fact or law, or whether it amounts to abuse of authority. The Tribunal will not rule on the appropriateness of the decision as it will not substitute the organization’s view with its own.”
Among the complainant’s various pleas against the contested transfer decision, there is one which falls within the limited scope of the Tribunal’s power of review thus defined, since it relates to a breach of procedural rules, and is decisive for the outcome of this dispute. This plea concerns a breach of the complainant’s right to be heard before the decision was taken.
Reference(s)
ILOAT Judgment(s): 4427, 4595, 4687
Keywords:
judicial review; transfer;
Consideration 13
Extract:
In Judgment 4609, consideration 8, the Tribunal recalled that its case law “requires that a staff member who is to be transferred be informed in advance of the nature of the post proposed for her or him and, in particular, of the duties involved, so that she or he is able to comment on those new duties [...] (see, for example, Judgments 4451, consideration 11, 3662, consideration 5, 1556, considerations 10 and 12, and 810, consideration 7)”. Similarly, in Judgment 4399, consideration 9, the Tribunal noted that “a proper consultation with the complainant prior to the decision being taken” was necessary. While it is true that this case law concerned individual transfers and not a collective transfer as in the present case, the Tribunal considers that the Organisation is wrong to submit that this requirement does not apply here because there is nothing in its Staff Regulations and Rules of Application imposing such an obligation in the context of a collective transfer carried out in the interests of the service.
Firstly, the absence of a binding provision to this effect in the applicable rules cannot permit an organisation to disregard the principles established by the Tribunal’s case law. Secondly, the fact that the transfer was collective rather than individual does not exempt the Organisation from this fundamental requirement. Although the Tribunal’s case law has it that the general principle protecting a staff member’s right to be heard cannot be applied to a general, impersonal decision which is collective in scope (see, for example, Judgments 4593, consideration 7, and 4283, consideration 6), in the present case, even if the impugned decision was collective in scope, it was obviously not impersonal. The Tribunal considers that a decision which, as in this case, notifies specifically identified staff members of their new individual postings with effect from 4 July 2019 cannot be considered an impersonal decision.
The Tribunal is not persuaded by Eurocontrol’s argument that it would not be “conceivable or even possible” for an organisation to consult individually each staff member before a collective transfer on the scale of that at issue in the present case, which affected over 600 staff members. The Organisation cannot refer to the scale of the collective transfer in support of its argument that it was not required to allow every staff member to comment before transferring her or him, even if this was done in a manner that was adapted and appropriate to the particular situation of this major reorganisation.
Reference(s)
ILOAT Judgment(s): 810, 1556, 3662, 4283, 4399, 4451, 4593, 4609
Keywords:
consultation; general decision; right to be heard; transfer;
Consideration 15
Extract:
The Tribunal considers that, owing to the circumstances in which the complainant’s transfer took place, without him being afforded any opportunity to express his views or to be heard before it was put into effect, that transfer was bound to hurt and shock him and thereby cause him substantial and serious moral injury. The Tribunal considers that this moral injury will be fairly redressed by awarding the complainant compensation in the amount of 10,000 euros.
Keywords:
consultation; moral injury; right to be heard; transfer;
Judgment 4690
136th Session, 2023
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to uphold his transfer to Budapest.
Judgment keywords
Keywords:
complaint allowed; transfer;
Considerations 6-7
Extract:
The requirement that the potential transferee be provided with reasons for the transfer is plainly linked to the right to present possible observations before the decision to transfer is perfected. The complainant contends no reasons were given. This is challenged by the FAO which says, […] in substance, three reasons were given. The first was that this transfer to the Budapest duty station accommodated the complainant’s medical circumstances which had been evaluated by the FAO’s medical service. The second was that the post was commensurate with the complainant’s professional qualifications and the third was that the transfer was in the interests of the Organization.
The second and third reasons were expressed at a high level of generality as reasons for nominating Budapest as the duty station and, particularly given the requirement in FAO Manual paragraph 311.4.11 to take into account the requirements of the work programme, did not provide the detail the provision implies. At the very least, that matter had to be expressly addressed in the reasons given for the transfer. Moreover, to say that the Budapest duty station accommodated the complainant’s medical circumstances is not, in isolation, a reason for transferring him there unless it is suggested, which it is not, that the Budapest duty station was the only duty station to which the complainant could have been transferred and which accommodated his medical circumstances. The Organization failed to do what was required of it, namely to provide him with reasons.
Keywords:
motivation; transfer;
Consideration 21
Extract:
The Tribunal now considers the relief claimed. The decision to transfer the complainant to Budapest did not respect the applicable rules (in the FAO Manual) and therefore, in this respect, was unlawful. The complainant requests that this transfer decision be quashed “with full retroactive effect, and all legal effects that flow therefrom”. No attempt is made to identify those legal effects. In any event, whether there remains an operative decision to transfer the complainant is now of no obvious legal or practical consequence, given that the transfer was effected, the complainant remained in Budapest in the post to which he had been transferred for almost two years, and the complainant has now retired and left the service of the FAO. In these circumstances, in accordance with Article VIII of the Statute of the Tribunal, the decision will not be quashed.
Keywords:
relief claimed; transfer;
Judgment 4687
136th Session, 2023
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate her appointment after she refused two reassignments.
Consideration 5
Extract:
The general principles in the Tribunal’s case law concerning decisions to reassign staff have most recently been discussed in consideration 2 of Judgment 4595:
“Consistent precedent has it that an executive head of an international organization has wide discretionary powers to manage the affairs of the organization pursuant to the policy directives and its rules, and that such decisions are consequently subject to only limited review. The Tribunal will ascertain whether a transfer decision is taken in accordance with the relevant rules on competence, form or procedure; whether it rests upon a mistake of fact or law, or whether it amounts to abuse of authority. The Tribunal will not rule on the appropriateness of the decision as it will not substitute the organization’s view with its own (see, for example, Judgment 4427, under 2). An international organization must carefully take into account the interests and dignity of staff members when effecting a transfer to which the staff member concerned is opposed (see, for example, Judgment 4427, under 11). It is incumbent upon an international organization to prove that a procedure which it has put in place has been duly followed, particularly if the implementation thereof is disputed (see, for example, Judgment 3601, under 20). [...]
The Tribunal has also stated that every international organization is bound by a duty of care to treat its staff members with dignity and avoid causing them undue and unnecessary injury (see, for example, Judgment 4253, under 3). While the head of an international organization must take into account the organization’s interests as well as the staff member’s abilities and interests in the exercise of the discretion to transfer a staff member, in cases where the two are at odds, greater weight may be accorded by the decision-maker to the interests of the organization (see Judgment 2635, under 6).”
Reference(s)
ILOAT Judgment(s): 2635, 3601, 4253, 4427, 4595
Keywords:
judicial review; reassignment; transfer;
Judgment keywords
Keywords:
complaint allowed; reassignment; termination of employment; transfer;
Consideration 8
Extract:
One legal issue presented for consideration by the pleas is whether the power to reassign an official to such a position is in any way conditioned or qualified in circumstances where a competition is on foot to fill the position. While it is not explicitly put this way by the complainant, it is the import of one of her pleas. There are a number of cases where the Tribunal has considered the direct appointment of a person to a position in circumstances where it denied the complainant “a right to compete” (see generally Judgments 4069, 3742, 3288 and 2959). By parity of reasoning, and notwithstanding the unequivocal bias just referred to, the decision to appoint the complainant, by way of reassignment, to the position in Cameroon deprived those who had entered the competition following the 27 December 2017 vacancy announcement of their right to compete and for each to have their candidature assessed on its merits. Deprivation of that right would involve a breach of WHO’s duty to act in good faith (see Judgments 4619, consideration 8, and 4618, consideration 8) to those who entered the competition. Consistent with the existence of this duty to act in good faith, the power to fill a position by reassignment, should not be interpreted as authorising reassignment
to a position when a competition is on foot to fill the very same position. There is an implied limitation on the exercise of the power to reassign. Thus, the decision of 12 January 2018 to reassign the complainant to the position in Cameroon was not lawful. Accordingly, the decision of 16 March 2018 to terminate her employment because she had refused the reassignment, was tainted by the unlawfulness of the reassignment decision and the decision to terminate should be set aside.
Reference(s)
ILOAT Judgment(s): 2959, 3288, 3742, 4069, 4618, 4619
Keywords:
appointment; appointment without competition; reassignment; selection procedure; termination of employment; transfer;
Judgment 4609
135th Session, 2023
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the new decision taken by UNESCO pursuant to Judgment 3936 in the context of her appeal against the decision to transfer her to Paris.
Consideration 4
Extract:
It is well established in the case law of the Tribunal that a decision to transfer an employee of an international organisation, which, as with any appointment decision, lies within the discretion of the executive head of the organisation concerned, is, for that reason, subject to only limited review. Therefore, such a decision may be set aside only if it was taken ultra vires, if it shows formal or procedural flaws or a mistake of fact or law, if some material fact was overlooked, if there was abuse of authority or if a clearly wrong conclusion was drawn from the evidence (see, for example, Judgments 4451, consideration 6, 3488, consideration 3, 2635, consideration 5, 1556, consideration 5, and 883, consideration 5).
Reference(s)
ILOAT Judgment(s): 883, 1556, 2635, 3488, 4451
Keywords:
discretion; role of the tribunal; transfer;
Judgment keywords
Keywords:
complaint allowed; transfer;
Consideration 8
Extract:
[T]he Tribunal’s case law [...] requires that a staff member who is to be transferred be informed in advance of the nature of the post proposed for her or him and, in particular, of the duties involved, so that she or he is able to comment on those new duties as well (see, for example,Judgments 4451, consideration 11, 3662, consideration 5, 1556, considerations 10 and 12, and 810, consideration 7).
Reference(s)
ILOAT Judgment(s): 810, 1556, 3662, 4451
Keywords:
duty to inform; post description; transfer;
Consideration 10
Extract:
The Tribunal’s case law shows that an organisation that is intending to transfer a staff member is obliged to ensure that the implementation of that measure is preceded by proper notice enabling the staff member to make the necessary arrangements for the change in her or his duty station (see [...] Judgment 1556, consideration 12, Judgment 1496, considerations 11 and 13, and [...] Judgment 810, consideration 7). In the present case, the period of 11 days given to the complainant under the decision of 18 February 2013 to take up her new post at Headquarters clearly fell short of that requirement, particularly given that in practical terms the transfer in question involved moving from Kinshasa to Paris.
Reference(s)
ILOAT Judgment(s): 810, 1496, 1556
Keywords:
duty station; notification; time limit; transfer;
Consideration 16
Extract:
[T]he complainant is right in contending that the unlawfulness of the impugned decision caused her moral injury. The lack of advance information provided to the complainant about the content of the new duties she was to assume and the unduly short period of time she was given to take up her new post in Paris were such as to cause her stress and anxiety and adversely affected her rights and her dignity, which is characteristic of that form of injury.
Keywords:
duty to inform; moral injury; notification; post description; time limit; transfer;
Judgment 4599
135th Session, 2023
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to abolish her post, reassign her, terminate her contract including the decision to defer the date of her termination, and to reject her claims of retaliation.
Consideration 19
Extract:
Regarding the reassignment of staff, the Tribunal has recognized the wide discretion of an executive head of an international organization to reassign staff in the interest of the organization. The discretion is enshrined in Article 1.2 of the Staff Regulations which states that all staff members are subject to the authority of the executive head of the organization and to assignment by her or him to any of the activities or offices of the organization. The Tribunal has therefore stated that it may interfere with a decision to reassign a staff member only on the limited grounds that the decision was taken ultra vires or shows a formal or procedural flaw or mistake of fact or law, if some material fact was overlooked, if there was misuse of authority or an obviously wrong inference was drawn from the evidence. The Tribunal has however emphasised that the organization must show due regard, in both form and substance, for the dignity of the official concerned, particularly by providing her or him with work of the same level of responsibilities as she or he performed in the previous post and matching her or his qualifications (Judgment 4240, under 5).
Reference(s)
ILOAT Judgment(s): 4240
Keywords:
discretion; judicial review; reassignment; transfer;
Judgment 4595
135th Session, 2023
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to transfer him to another duty station.
Judgment keywords
Keywords:
complaint allowed; transfer;
Consideration 2
Extract:
Consistent precedent has it that an executive head of an international organization has wide discretionary powers to manage the affairs of the organization pursuant to the policy directives and its rules, and that such decisions are consequently subject to only limited review. The Tribunal will ascertain whether a transfer decision is taken in accordance with the relevant rules on competence, form or procedure; whether it rests upon a mistake of fact or law, or whether it amounts to abuse of authority. The Tribunal will not rule on the appropriateness of the decision as it will not substitute the organization’s view with its own (see, for example, Judgment 4427, under 2). An international organization must carefully take into account the interests and dignity of staff members when effecting a transfer to which the staff member concerned is opposed (see, for example, Judgment 4427, under 11). It is incumbent upon an international organization to prove that a procedure which it has put in place has been duly followed, particularly if the implementation thereof is disputed (see, for example, Judgment 3601, under 20). […]
The Tribunal has also stated that every international organization is bound by a duty of care to treat its staff members with dignity and avoid causing them undue and unnecessary injury (see, for example, Judgment 4253, under 3). While the head of an international organization must take into account the organization’s interests as well as the staff member’s abilities and interests in the exercise of the discretion to transfer a staff member, in cases where the two are at odds, greater weight may be accorded by the decision maker to the interests of the organization (see Judgment 2635, under 6).
Reference(s)
ILOAT Judgment(s): 2635, 3601, 4253, 4427
Keywords:
discretion; transfer;
Judgment 4488
133rd Session, 2022
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to transfer her to another post.
Judgment keywords
Keywords:
complaint allowed; transfer;
Consideration 6
Extract:
[T]his response does not answer the fundamental proposition emerging from Judgment 2819, namely that if the new tasks involve none of the tasks specified in the Service Regulations for a grade A6 post, the transfer did not respect the transferee’s dignity (see consideration 8, as explained more fully in that judgment).
Reference(s)
ILOAT Judgment(s): 2819
Keywords:
transfer;
Judgment 4472
133rd Session, 2022
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to appoint an official to his former post.
Judgment keywords
Keywords:
appointment; complaint dismissed; selection procedure; transfer;
Consideration 6
Extract:
[A]rticle 7 of the Staff Regulations allows the Director General, acting solely in the interest of the service and without regard to nationality, to assign each official by transfer to a post in his function group, which corresponds to his grade and his service.
In the event of a transfer under Article 7, in which the Director General has broad discretion, the Organisation is not required to announce the vacancy or organise a competition to fill the post under Articles 4 or 30 of the Staff Regulations (see Judgment 1757, consideration 11). The complainant does not contest that, as Eurocontrol submits, there was an interest of the service that warranted the use of that procedure to fill the post. This plea will therefore be dismissed.
Reference(s)
ILOAT Judgment(s): 1757
Keywords:
interest of the service; transfer;
Judgment 4459
133rd Session, 2022
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to defer her transfer, under IOM’s policy on rotation, to Sudan until she was able to find adequate medical and schooling facilities for her disabled daughter.
Judgment keywords
Keywords:
complaint allowed; duty of care; transfer;
Consideration 10
Extract:
[T]he Tribunal’s view is that the complainant reasonably requested that her move to Sudan be delayed and that, pursuant to paragraph 5 to Annex 8 to the Staff Rules relating to rotation and the duty of care owed to the complainant, the Director General should have continued to temporarily waive her transfer under the rotation policy out of consideration for her daughter’s special needs and related family circumstances until she was able to secure suitable facilities there for her educational needs. This would have been in accordance with the duty of care which IOM owed to the complainant, which was accordingly breached.
Keywords:
duty of care; transfer;
Judgment 4451
133rd Session, 2022
International Fund for Agricultural Development
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision concerning her management-driven transfer.
Consideration 6
Extract:
In respect of its consideration of the various pleas, the Tribunal wishes to begin by pointing out that, with regard to decisions to transfer, appoint, reassign or promote an international civil servant or to refuse to select her or him for a vacant post, it considers, in accordance with established case law, that such decisions lie within the discretion of the competent authority of the organisation concerned and are subject to only limited review by the Tribunal. Thus, such a decision 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. Moreover, the Tribunal will be especially wary in reviewing a transfer since it may not replace the employer’s rating of the official with its own (see, inter alia, Judgments 1556, consideration 5, and 4408, consideration 2).
Reference(s)
ILOAT Judgment(s): 1556, 4408
Keywords:
discretion; role of the tribunal; transfer;
Consideration 11
Extract:
The Tribunal considers that a transfer decision satisfies the requirements laid down in its case law concerning the statement of reasons when, in particular, the staff member was given explanations enabling her or him to comment on the new duties in detail and in full knowledge of the facts before the decision was taken (see Judgment 3662, consideration 5, and the case law cited therein). The Tribunal considers that, just as the requisite statement of reasons may be contained in the notification informing the staff member of the decision or any other document, the reasons may also be provided in prior proceedings, or orally (see, inter alia, Judgments 1590, consideration 7, 1757, consideration 5, and 4397, consideration 15), or may even be conveyed in response to a subsequent challenge (see Judgments 1590, consideration 7, and 3316, consideration 7).
Reference(s)
ILOAT Judgment(s): 1590, 1757, 3316, 3662, 4397
Keywords:
motivation; motivation of final decision; transfer;
Judgment keywords
Keywords:
complaint dismissed; transfer;
Judgment 4427
132nd Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to maintain his transfer to a patent examiner post.
Consideration 2
Extract:
[C]onsistent precedent has it that an executive head of an international organization has wide discretionary powers to manage the affairs of the organization pursuant to the policy directives and its rules and that such decisions are consequently subject to only limited review. The Tribunal will ascertain whether a transfer decision is taken in accordance with the relevant rules on competence, form or procedure; rests upon a mistake of fact or law or whether it amounts to abuse of authority. The Tribunal will not rule on the appropriateness of the decision as it will not substitute the organization’s view with its own (see, for example, Judgment 4084, under 8).
Reference(s)
ILOAT Judgment(s): 4084
Keywords:
discretion; judicial review; transfer;
Consideration 11
Extract:
The complainant’s contention that the decision to transfer him to the examiner’s position violated the EPO’s duty of care and his dignity is well founded given the indignity and humiliation he suffered by virtue of his transfer from the administrative post that he held for some 16 years to what was, in effect, an entry level examiner’s position. The Tribunal has consistently stated, in Judgment 4240, consideration 16, for example, that an organization must carefully take into account the interests and dignity of staff members when effecting a transfer to which the staff member concerned is opposed. It should have been obvious to the EPO that the complainant’s responsibilities in the new post were significantly different from those responsibilities which were attached to his previous post and were not objectively comparable with his previous responsibilities. Moreover, there is no evidence to show that the complainant’s legitimate objections to the proposed transfer were properly addressed by the Administration before he was transferred.
Reference(s)
ILOAT Judgment(s): 4240
Keywords:
duty of care; respect for dignity; transfer;
Consideration 14
Extract:
Given the unlawfulness of the decision to transfer the complainant to the examiner’s post in October 2008 and his evidence of the injury (the humiliation and loss of status) which the transfer decision caused him, he is entitled to moral damages for which he will be awarded 50,000 Swiss francs.
Keywords:
moral injury; transfer;
Judgment keywords
Keywords:
complaint allowed; decision quashed; transfer;
Judgment 4399
131st Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to transfer him from a manager position to a non-managerial post.
Judgment keywords
Keywords:
complaint allowed; conflict of interest; transfer;
Judgment 4397
131st Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to transfer her.
Judgment keywords
Keywords:
complaint allowed; transfer;
Considerations 10-12
Extract:
The claim that the [transfer] decision […] lacked legal basis is well founded. The Organisation relied on its general power to restructure its services to justify the complainant’s “reassignment” […]. The Organisation notes that the Tribunal’s case law forms part of its legal framework. However, the Tribunal’s consistent case law holds that “any authority is bound by the rules it has itself issued until it amends, suspends or repeals them. The general principle is that rules govern only what is to happen henceforth, and it is binding on any authority since it affords the basis for relations between the parties in law. Furthermore, a rule is enforceable only from the date on which it is brought to the notice of those to whom it applies (see Judgment 963, under 5). A competent body adopts rules in order to regulate its exercise of discretionary power in making specific decisions. It would radically contrast with the finality and essence of a rule (which is by nature general and abstract) to allow that in making a decision the authority can disregard a rule that was adopted in order to limit the authorities’ power concerning particular subjects and instead create an opportunity for expanding one’s power. Obviously, the procedure to adopt rules must be different from the procedure to make decisions, because rules are general and apply to many (undefined) and therefore must be published accordingly, whereas decisions are more precise and apply to few (defined)” (see Judgment 2575, consideration 6).
In stating that “the legal basis for restructuring decisions [is] not to be found exclusively in the [Service Regulations]”, the Appeals Committee misinterpreted the Tribunal’s case law. While it is true that, in taking restructuring decisions, the executive head can also rely on some well-established principles enshrined in the case law (see, for example, Judgments 4086, consideration 11, 3488, consideration 3, and 2839, consideration 11), she or he is bound by the proper application of the relevant provisions in force. In the present case, the Organisation erred in not following the provisions in force at the time the […] decision was taken, when it created a new post without advertising the vacancy. […]
The Organisation’s assertion that the impugned decision was lawful as it was based on its general power to restructure its services, in its generality, is not acceptable. The Organisation’s wide discretion still requires it to be exercised within the limits of the general principles of law and the existing provisions; otherwise, it becomes a way to circumvent the provisions in force, leading to arbitrariness. At the time the [transfer] decision was taken, there was no provision in the Service Regulations which allowed the EPO to reassign an employee, together with her or his post, to duties corresponding to her or his grade, or which allowed the EPO to create and fill a new post without following the provisions regarding transfers and creation of posts. […]
Reference(s)
ILOAT Judgment(s): 963, 2575, 2839, 3488
Keywords:
applicable law; patere legem; reorganisation; transfer;
Judgment 4266
129th Session, 2020
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the rejection of his requests for a transfer.
Judgment keywords
Keywords:
complaint dismissed; transfer;
Judgment 4240
129th Session, 2020
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reassign her to the post of Senior Advisor on Innovative Strategic Information, Strategic Information and Evaluation Department.
Consideration 16
Extract:
The [Global Board of Appeal] [...] erred when it did not further consider whether, on the basis of the significantly different responsibilities, WHO/UNAIDS had breached its duty of care towards the complainant. The Tribunal has stated in Judgment 2191, consideration 3, that organizations must carefully take into account the interests and dignity of staff members when effecting a transfer to which the staff member concerned is opposed. It should have been obvious to the GBA from its own analysis that the complainant’s responsibilities had been reduced materially because of the absence of supervisory or managerial functions from the Senior Advisor post so that that post was not objectively comparable with her previous Director, TIN, post (see, for example, Judgment 4086, consideration 14). There is no evidence in the file to show that the complainant’s legitimate objections to the proposed reassignment, particularly concerning her level of responsibility, were properly addressed by the Administration before that decision was imposed on her on 28 January 2016. The complainant’s allegation that in reassigning her the Organization breached its duty of care towards her is therefore well founded.
Reference(s)
ILOAT Judgment(s): 2191, 4086
Keywords:
duty of care; reassignment; respect for dignity; transfer;
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