Motivation (669,-666)
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Judgment 4903
138th Session, 2024
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the refusal to select him for a post of civil engineering technician.
Consideration 7
Extract:
[A]ccording to [the] case law, the duty to state the reasons for the rejection of an application in a selection procedure does not mean that they must be notified at the same time as the decision itself. These reasons may be disclosed at a later date to the staff member concerned, for example in the context of internal appeal proceedings (see, in particular, Judgments 4683, consideration 12, 4467, consideration 7, and 2978, consideration 4). In the present case, these reasons were in fact disclosed to the complainant during the internal appeal proceedings, as he himself acknowledges.
Reference(s)
ILOAT Judgment(s): 2978, 4467, 4683
Keywords:
motivation; selection procedure;
Judgment 4900
138th Session, 2024
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges, in his first complaint, the partial rejection of his harassment complaint before investigation and, in his fourth complaint, the rejection of his harassment complaint after investigation.
Considerations 21, 22 and 25
Extract:
In the first place, the complainant submits that he was not given an explanation in due time as to why his harassment complaint was rejected in respect of one of the persons concerned, namely Ms L.M., or which parts of his complaint justified the finding that it was partly irreceivable in respect of another of those persons, namely Mr T.S.
The Tribunal notes that, firstly with regard to Ms L.M., it is true that no explanation was given to justify the rejection of the harassment complaint in her regard. [...]
However, it is well established in the case law that the reasons for a decision must be sufficiently explicit to enable the staff member concerned to take an informed decision accordingly (see, for example, Judgments 4547, consideration 3, and 4164, consideration 11). It is evident that a total lack of explanation does not meet these requirements.
[...]
As regards Mr T.S., it is likewise apparent from the information provided to the complainant on 7 July 2020 that no explanation was given to him at that point enabling him to identify which aspects of his harassment complaint against Mr T.S. were considered irreceivable by the Investigating Subpanel.
On this point, the Organization submits that, since the initial assessment of a harassment complaint is intended only to determine whether an investigation ought to be opened into that complaint, the adversarial principle did not apply in this preliminary stage of the procedure and the complainant could not complain that this principle had been breached by the failure to explain which aspects of the complaint had been considered irreceivable in respect of Mr T.S. However, the complainant’s objection relates rather to the insufficient and non-existent reasoning provided in support of the decision to reject the complaint as partly irreceivable, which falls within the scope of the complainant’s right to a proper and fair appeal procedure and the minimum requirements enabling him to respond and take a decision accordingly.
Reference(s)
ILOAT Judgment(s): 4164, 4547
Keywords:
motivation;
Judgment 4885
138th Session, 2024
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the abolition of his training duties.
Considerations 6 and 9
Extract:
Under the Tribunal’s case law, a job description does not confer an entitlement to the continued existence of the duties or responsibilities referred to therein, or of the post to which it relates (see, for example, Judgment 4654, consideration 19).
The Tribunal points out above all that any irregularity in the situation resulting from the absence of reference in the complainant’s job description to the training duties assigned to him at the time when he performed them does not affect the lawfulness of the decision to end them. The fact that these duties had not previously been officially recognised in that form, even assuming that they should have been, obviously did not in itself make their abolition unlawful. In reality, the complainant could have effectively submitted to the Tribunal the dispute which he wishes to raise not as a challenge to the decision at issue here, but as a challenge to a decision refusing to modify his job description to take account of his previous responsibilities, which it was up to him to elicit, if necessary, by submitting a request for such a modification to UNESCO at the appropriate time. [...]
As regards the plea of a failure to state reasons, it should be recalled that the Tribunal’s case law does not require the reasons for an administrative decision to necessarily be set out in the decision itself and allows them to be provided, for example, in other documents or orally (see Judgments 4451, consideration 11, 3662, consideration 3, or 1590, consideration 7). [...]
In those circumstances, and particularly since that outsourcing was sufficient in itself to explain the abolition of the training duties previously assigned to the complainant, the Tribunal considers that the alleged failure to state reasons of which he complains cannot, in any event, be accepted.
Reference(s)
ILOAT Judgment(s): 1590, 3662, 4451, 4654
Keywords:
motivation; outsourcing; post description;
Judgment 4880
138th Session, 2024
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the abolition of his training duties.
Considerations 6 and 9
Extract:
Under the Tribunal’s case law, a job description does not confer an entitlement to the continued existence of the duties or responsibilities referred to therein, or of the post to which it relates (see, for example, Judgment 4654, consideration 19).
The Tribunal points out above all that any irregularity in the situation resulting from the absence of reference in the complainant’s job description to the training duties assigned to him at the time when he performed them does not affect the lawfulness of the decision to end them. The fact that these duties had not previously been officially recognised in that form, even assuming that they should have been, obviously did not in itself make their abolition unlawful. In reality, the complainant could have effectively submitted to the Tribunal the dispute which he wishes to raise not as a challenge to the decision at issue here, but as a challenge to a decision refusing to modify his job description to take account of his previous responsibilities, which it was up to him to elicit, if necessary, by submitting a request for such a modification to UNESCO at the appropriate time.
[...]
As regards the plea of a failure to state reasons, it should be recalled that the Tribunal’s case law does not require the reasons for an administrative decision to necessarily be set out in the decision itself and allows them to be provided, for example, in other documents or orally (see Judgments 4451, consideration 11, 3662, consideration 3, or 1590, consideration 7). [...]
In those circumstances, and particularly since that outsourcing was sufficient in itself to explain the abolition of the training duties previously assigned to the complainant, the Tribunal considers that the alleged failure to state reasons of which he complains cannot, in any event, be accepted.
Reference(s)
ILOAT Judgment(s): 1590, 3662, 4451, 4654
Keywords:
motivation; outsourcing; post description;
Judgment 4877
138th Session, 2024
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the non-renewal of his temporary appointment.
Consideration 8
Extract:
[T]he Tribunal recalls its own case law [...] according to which the reasons for a non-renewal decision need not necessarily appear in the decision itself (see, for example, Judgments 4368, consideration 15, 3914, consideration 15, and 1750, consideration 6), but may also be communicated to the staff member concerned in another way, such as at a meeting (compare, for example, with Judgment 3914, consideration 15).
Reference(s)
ILOAT Judgment(s): 1750, 3914, 4368
Keywords:
administrative decision; motivation; non-renewal of contract;
Judgment 4843
138th Session, 2024
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant – whose post was suppressed – challenges the decision to transfer another official to a post to which he believes he should have been reassigned as a priority.
Consideration 4
Extract:
The Tribunal considers that simply referring to three grounds on which an internal appeal may be inadmissible, without indicating either which one or more of those grounds apply to the present case, or the factual circumstances which might justify invoking those legal grounds, cannot, in any event, constitute sufficient reasoning within the meaning of its case law. The reasons are not sufficiently explicit to enable the person concerned to take an informed decision accordingly. Neither does it allow the Tribunal to exercise its power of review (see, for a recent example, Judgment 4467, consideration 7).
Reference(s)
ILOAT Judgment(s): 4467
Keywords:
motivation;
Judgment 4841
138th Session, 2024
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to abolish the post she used to hold and not to renew her contract beyond 31 December 2020.
Consideration 3
Extract:
[T]he JARB report entirely failed to address in any detail the merits of any of the complainant’s pleas. In so doing, it denied her right to an effective internal appeal (see Judgments 4169, consideration 5, 4063, consideration 5, and 4028, consideration 8).
This is sufficient to set aside the impugned decision of 23 August 2021, without there being any need to address the complainant’s fifth and sixth arguments. For the violation of her right to an effective internal appeal, the complainant is entitled to moral damages […]. However, in the circumstances of the case, the Tribunal will not send it back to the Organization and will directly address the complainant’s pleas concerning the decisions to abolish her post and not to renew her contract.
Reference(s)
ILOAT Judgment(s): 4028, 4063, 4169
Keywords:
internal appeals body; motivation;
Judgment 4832
138th Session, 2024
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to impose on her the disciplinary sanction of demotion by two grades.
Considerations 31-33
Extract:
In Judgment 3969, consideration 10, referring to Judgment 3862, consideration 20, the Tribunal recalled the overarching legal principles that apply in terms of motivation of a decision when the executive head of an organization elects not to follow the recommendation of an internal advisory body:
“[...] ‘The executive head of an international organisation is not bound to follow a recommendation of any internal appeal body nor bound to adopt the reasoning of that body. However an executive head who departs from a recommendation of such a body must state the reasons for disregarding it and must motivate the decision actually reached. In addition, according to the well-settled case law of the Tribunal, the burden of proof rests on an organisation to prove allegations of misconduct beyond a reasonable doubt before a disciplinary sanction can be imposed (see, for example, Judgment 3649, consideration 14). [...]’
These observations, as they relate to reports and conclusions of internal appeal bodies, are equally applicable to reports and opinions of a Disciplinary Committee.”
The constant case law of the Tribunal confirms that an organization must provide a proper and clear motivation when it does not follow the opinion and recommendation of an internal appeal body to the detriment of the employee concerned (see, for example, Judgment 4062, consideration 3, and the case law cited therein). In Judgment 3161, consideration 7, the Tribunal recalled that it is necessary for the executive head of an organization to explain the basis on which she or he arrived at a different conclusion than that of the internal advisory body. In this regard, it is not enough to simply identify flaws in the reasoning or procedures of the advisory body, but reasons must be provided for the opposite conclusion reached by the executive head.
In the impugned decision, the Secretary-General offered no explanation to support his conclusion that he was maintaining a demotion by two grades notwithstanding the recommendation of the Appeal Board to refer the matter for re-evaluation to the JAC’s Disciplinary Chamber. Besides stating that this was his conclusion that such sanction was proportionate and appropriate under the circumstances, no more reasons were offered. This fell short of the requirements of the Tribunal’s case law that indicates that a complainant must be made aware of this motivation in order to be able to conduct herself or himself accordingly and properly respond (see, for example, Judgment 1817, consideration 6).
Reference(s)
ILOAT Judgment(s): 1817, 3161, 3649, 3862, 3969, 4062
Keywords:
motivation; motivation of final decision;
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;
Judgment 4820
138th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to dismiss his moral harassment complaints, and claims compensation for the injury which he considers he has suffered.
Consideration 12
Extract:
Secondly, it appears, as the Organisation acknowledges in its reply, that the investigation report was also not provided, either in full or even in anonymized form, to the Joint Committee for Disputes before it gave its opinion on 27 February 2020, which in itself also constitutes a flaw since the Committee must be able under all circumstances to give a full and informed opinion (see, in this respect, Judgments 4471, consideration 14, and 4167, consideration 3).
The fact that the members of the Committee considered unanimously that the complainant’s internal complaint was well-founded is irrelevant in this respect, since the Committee could have given an even more reasoned opinion on the merits had it been provided with the final investigation report.
Reference(s)
ILOAT Judgment(s): 4167, 4471
Keywords:
final decision; harassment; internal appeals body; investigation report; motivation; motivation of final decision; procedural flaw;
Considerations 10-11
Extract:
It is firstly clear, on the one hand, that the final investigation report, although requested by the complainant on several occasions, was never forwarded to him during the internal proceedings, even in anonymized form, which made him unable to be properly heard with full knowledge of the facts in these proceedings.
It emerges from the Director General’s decision of 27 March 2020, whereby he dismissed the internal appeal filed against the decision to dismiss the first harassment complaint inasmuch as it was directed against Mr P.H., that only the conclusions of the investigation report, set out in point 5 thereof, were forwarded to the complainant as an annex to the decision, while, in the decision itself, the Director General merely stated that “the facts examined in [the complainant’s] case [were] not constitutive of moral harassment”. Furthermore, if the Tribunal also refers to these conclusions of the investigation report, it must be noted that they are limited to the following considerations: firstly, “[t]he perception of the facts given by [the complainant] is not in line with the perception by Mr [P.H.] and by all heard MUAC [in Maastricht] witnesses. Documents give prove [sic] of meetings, appraisals, and situations, but do not prove any form of psychological harassment”; secondly, “[t]he investigation only focussed on possible psychological harassment by Mr [P.H.], it was not mandated to go further into the broader context”; thirdly, various observations made by the investigators about how the recruitment programme for young graduates was organized by the Organisation.
The Tribunal considers that such limited disclosure of the conclusions of the investigation report clearly does not meet the requirements laid down in its relevant case law and that the complainant may reasonably claim that he was unable to verify, even at the internal appeal stage, the content of the statements of the alleged harasser and the witnesses or the seriousness of the investigation conducted (compare, in particular, with Judgment 4471, considerations 14 and 23). The Tribunal recalls that it is firmly established that a staff member must, as a general rule, have access to all evidence on which the competent authority bases its decision concerning her or him (see, for example, Judgments 4739, consideration 10 (and the case law cited therein), 4217, consideration 4, 3995, consideration 5, 3295, consideration 13, 3214, consideration 24, 2700, consideration 6, or 2229, consideration 3(b)). This implies, among other things, that an organization must forward to the staff member who has filed a harassment complaint the report drawn up at the end of the investigation of that complaint (see, in particular, Judgments 4217, consideration 4, 3995, consideration 5, 3831, consideration 17, and 3347, considerations 19 to 21).
The Organisation argues in this regard that the full investigation report is annexed to its reply and that this is in line with the Tribunal’s case law on this point, whereby the reasons for a decision may be provided in other proceedings or may be conveyed in response to a subsequent challenge (see Judgments 3316, consideration 7, 1757, consideration 5, and 1590, consideration 7).
However, the Tribunal has already recalled in this regard that, while the non-disclosure of evidence can be corrected, in certain cases, when this flaw is subsequently remedied, including in proceedings before it (see, for example, Judgments 4217, consideration 4, and 3117, consideration 11), that is not the case where the document in question is of vital importance having regard to the subject matter of the dispute, as it is here (see Judgments 4217 consideration 4, 3995, consideration 5, 3831, considerations 16, 17 and 29, 3490, consideration 33, and 2315, consideration 27).
Reference(s)
ILOAT Judgment(s): 1590, 1757, 2229, 2315, 2700, 3117, 3214, 3295, 3316, 3347, 3490, 3831, 3995, 4217, 4471, 4739
Keywords:
confidential evidence; disclosure of evidence; due process; duty to inform; duty to inform about the investigation; general principle; harassment; internal appeals body; investigation report; motivation; motivation of final decision; official; organisation's duties; procedural flaw; right to information;
Consideration 13
Extract:
The Tribunal observes, thirdly, that, although the two matters outlined above were, among others, specifically noted by the Joint Committee for Disputes in reaching the unanimous conclusion, in its opinion issued on 24 January 2022, that the complainant’s internal complaint was well-founded, they were not in any way addressed in the reasons given in the Director General’s final decision of 12 May 2022.
Accordingly, there are grounds for considering that the reasons given for this decision are also not adequate, within the meaning of the Tribunal’s relevant case law (see Judgments 4700, consideration 4, 4598, consideration 12, 4400, consideration 10, and 4062, consideration 3).
Reference(s)
ILOAT Judgment(s): 4062, 4400, 4598, 4700
Keywords:
duty to substantiate decision; impugned decision; motivation; motivation of final decision;
Judgment 4819
138th Session, 2024
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to place him on “administrative leave” as a consequence of the structural reorganization of the Eurocontrol Agency, the Organisation’s secretariat, which led to the abolition of his functions and the launch of a reassignment procedure, as well as the decision to reject his allegations of moral harassment.
Consideration 8
Extract:
Still with respect to the decisions of which he was notified on 5 July 2019, the complainant considers, secondly, that they are based on spurious grounds. The purportedly substantial reorganization of the NTS Division which the complainant headed was purely fictitious, his functions were not in fact abolished as had been indicated to him at the meeting of 5 July 2019, and no other staff member in his Division was really disadvantaged by the introduction of the new Technology Division. He also considers that a reorganization due to be finalized in September 2019 could not, under any circumstances, give rise to a decision to abolish his functions on 5 July 2019, that is more than three months in advance. Accordingly, the complainant takes the view that he was never afforded the opportunity to ascertain the real reasons for which his functions were abolished, as the Joint Committee for Disputes also unanimously observed. In this regard, the complainant refutes each of the various grounds relied on in turn by Eurocontrol, whether in the decisions of 5 July 2019 or in its written submissions to the Tribunal, and notes a contradiction between the grounds set forth successively by the Organisation.
The Tribunal notes that in the memorandum of the Head of the Human Resources and Services Unit of which the complainant was notified on 5 July 2019, it was firstly stated that following the reorganization of the Agency, the NTS Division would be abolished, as would the complainant’s functions. It was indicated secondly, in an email of 8 August 2019, that following the regrouping of all of the Agency’s information technology activities, the role of Head of the new Technology Division had become a substantially different role from that of Head of the NTS Division, in particular because that new division was approximately three times the size of the former NTS Division. Thirdly, the Agency argued that the organizational changes introduced meant that new skills were required for managerial positions, and that the “leadership” style desired and required by the Director General no longer matched the profile of the complainant, who was more a technical expert than a “leader”.
Thus, the specific justifications given concerning the various decisions of which the complainant was notified on 5 July 2019 changed as time went by, in line with his criticisms. The initial outright abolition of his functions became a substantial modification of the duties to be performed and, finally, turned into a modification of the “leadership” style required of the incumbents of managerial posts. This is all the more regrettable given that the complainant clearly stated, and this is not disputed by Eurocontrol, on the one hand, that from 2014 to 2017 he had headed the NTS Division, which already consisted of some 150 staff members and in which all of the Agency’s information technology services were grouped together before it was decided to split them, and, in July 2019, to regroup them again, and, on the other hand, that his various performance evaluation reports, in particular those relating to this period, had always been very positive, in particular with regard to his “leadership” capacity.
It follows that the various grounds on which the above-mentioned decisions are purported to be based cannot be considered valid and adequate within the meaning of the Tribunal’s case law (see, for example, Judgments 4467, consideration 7, 4108, consideration 3, and 1817, consideration 7).
This plea is, therefore, well-founded.
Reference(s)
ILOAT Judgment(s): 1817, 4108, 4467
Keywords:
abolition of post; motivation; motivation of final decision; reorganisation;
Judgment 4700
136th Session, 2023
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges measures reorganising his working time.
Consideration 4
Extract:
In stating that she shared an opinion that none of the members in fact held, the Head of the Human Resources and Services Unit ultimately failed to provide any reasons for her decision in this regard. It is well established by the case law that the reasons for a decision must be sufficiently explicit to enable the person concerned to understand why it was taken (see, for example, Judgment 4164, consideration 11) and an absence of reasons clearly does not satisfy this minimum standard.
Reference(s)
ILOAT Judgment(s): 4164
Keywords:
motivation;
Consideration 4
Extract:
[I]n the impugned decision, the Head of the Human Resources and Services Unit did not explain why the majority view of the three members of the Committee who had concluded that this was not a question of a simple managerial decision should be departed from in this way. Neither did she explain why a reduction from three to two officials did not constitute a change in working conditions, notwithstanding the fact that the measure was adopted pursuant to a rule of application (Rule of Application No. 29) specifically dealing with the working conditions of DNM operational staff.
Under settled case law, the executive head of an international organisation, when taking a decision on an internal appeal that departs from the recommendations made by the appeals body, to the detriment of the employee concerned, must adequately state the reasons for not following those recommendations (see Judgment 4437, consideration 19, and the case law cited therein). As the Tribunal also recalled in Judgment 3695, consideration 9, when the executive head of an organisation “fail[s] to explain, in any satisfactory and persuasive way, why the recommendations of the [appeals body], whether the majority or the minority, should be rejected, [f]or this reason alone the impugned decision rejecting [a] complainant’s appeal [...]should be set aside” (see also, in this respect, Judgment 3161, consideration 7, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 3161, 3695, 4437
Keywords:
motivation;
Consideration 6
Extract:
[T]he fact that the insufficient and deficient reasoning in the impugned decision breached the complainant’s right to a due internal appeals procedure undoubtedly caused him moral injury, which warrants an award of damages. The Tribunal considers that this injury will be fairly redressed, in this case, by awarding compensation to the complainant under this head in the amount of 1,000 euros.
Keywords:
moral injury; motivation;
Judgment 4697
136th Session, 2023
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the Director General’s decision to impose on him the disciplinary sanction of downgrading.
Consideration 23
Extract:
In light of these factors, the Tribunal considers that it was not possible for the Director General to depart from the unanimous opinions of the Disciplinary Board and the Joint Committee for Disputes in the way he did. The grounds he gave in the contested decisions do not meet the standard of a clear and cogent demonstration of the Organisation’s ability to conclude beyond reasonable doubt that the complainant was guilty.
Keywords:
beyond reasonable doubt; motivation; standard of proof;
Consideration 5
Extract:
In the context of the present case, the Tribunal considers that the Director General of the Organisation could only depart from the unanimous opinions of the Disciplinary Board and the Joint Committee for Disputes for clear and cogent reasons (see Judgment 4504, consideration 10).
Reference(s)
ILOAT Judgment(s): 4504
Keywords:
motivation;
Judgment 4695
136th Session, 2023
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision requiring him to reimburse the undue payments of salary he received during absences that were declared to be unjustified by the Administration.
Consideration 11
Extract:
[I]t is established case law of the Tribunal that the reasons for a decision must be sufficiently explicit to enable the person concerned to take an informed decision accordingly. They must also enable the competent review bodies to determine whether the decision is lawful and, in particular, the Tribunal to exercise its power of review (see Judgment 4467, consideration 7).
Reference(s)
ILOAT Judgment(s): 4467
Keywords:
motivation;
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.
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;
Judgment 4683
136th Session, 2023
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests her non-selection to a post.
Consideration 12
Extract:
[T]he Tribunal’s case law states that the duty to state the reasons for the choice does not mean that they must be notified at the same time as the decision. These reasons may be disclosed at a later date, for example in the context of appeal proceedings (see Judgments 4467, consideration 7, and 2978, consideration 4).
Reference(s)
ILOAT Judgment(s): 2978, 4467
Keywords:
motivation; selection procedure;
Judgment 4674
136th Session, 2023
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss her for misconduct.
Considerations 9-10
Extract:
A difficulty with this approach of the Board is that while it may be true, based on its findings, that the complainant should have known, and possibly inferentially did know, “some” of her conduct was harassment, the Board made no finding that this was true of all the conduct charged against her as misconduct and proven to its satisfaction. This is not a case where each alleged act of misconduct was identified, separately, as warranting the sanction of dismissal. It was the aggregation of conduct “creating a hostile work environment over an extended period of time” which underlay the decision to dismiss. Additionally, one instance where the complainant had caused staff to cry occurred within two years of the complaint against her being lodged by the Staff Association in September 2016. Her complaint about lack of warning was directed to events over the entire preceding nine years comprehended by the charges, which events occurred, in the main, before 2014.
In the impugned decision, the Director effectively repeated this flawed analysis of the Board though, significantly, omitted the word “some” (referred to earlier) in saying that “the Board found that your conduct was ‘so clearly out of bounds that [you] could not help but know that it was improper’”. As just discussed, no such compendious finding was made by the Board in relation to all the conduct relied upon by the Director in confirming the dismissal of the complainant by rejecting her appeal. This material flaw in the analysis by the Director was compounded by her saying that the complainant’s assertion that the Director of Administration and the HRM Director “tolerated” her conduct did not provide the complainant with a defence when her actions were so obviously a violation of the Harassment Policy. This comment is not motivated save to the extent that it involved a purported adoption of what the Board had concluded. No such general conclusion had been reached by the Board […].
Keywords:
beyond reasonable doubt; final decision; misconduct; motivation;
Judgment 4662
136th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the Secretary General’s decision to reject her application for voluntary departure and her claim for compensation for “legitimate resignation”.
Consideration 9
Extract:
[I]n assessing the complainant’s application, the Committee and the Secretary General were entitled to take into account the Organization’s interests and the consequences of the complainant’s voluntary departure. The reasons given for rejecting her application – firstly, to await the arrival of a new executive director to assess the needs of the executive directorate, and secondly, because of the recent assignment of additional staff to her unit to meet human resources requirements – could be justified in terms of the Organization’s interests. It is not for the Tribunal to substitute its assessment for that of the Organization in such a case.
Keywords:
judicial review; motivation; organisation's interest;
Judgment 4658
136th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his suspension with pay during disciplinary proceedings against him.
Consideration 6
Extract:
[T]he Tribunal is of the view that the reasoning given for the suspension decision of 3 April 2018 is a generic formula which, in the absence of any other explanation, is meaningless. Accordingly, adequate reasons were not given for the decision [...].
Keywords:
motivation; suspension;
Consideration 6
Extract:
[P]recedent has it that any administrative decision, even when the authority exercises discretionary power, must be based on valid grounds (see, for example, Judgments 4437, consideration 19, and 4108, consideration 3; see, concerning particularly the obligation to provide reasons for a measure of suspension, Judgment 4455, consideration 11).
Reference(s)
ILOAT Judgment(s): 4108, 4437, 4455
Keywords:
motivation; suspension;
Judgment 4654
136th Session, 2023
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant seeks a redefinition of his employment relationship and the setting aside of the decision not to renew his employment contract.
Consideration 19
Extract:
It is clear from the submissions that the functions of statistician that he performed in HRMD no longer met that department’s requirements at the time when the decisions were taken. The IT projects on which the complainant mostly worked – namely those in the “ERP portfolio” – were due to finish in June 2017. Furthermore, new applications meant that WIPO’s various administrative units could now compile their own human resources statistics rather than needing as a matter of course to consult a specialist in this field employed within HRMD, with the result that HRMD no longer needed to have a full-time statistician. Contrary to what the complainant submits, the job description for his post, as drawn up in 2008, had been rendered obsolete, given that the content of a document of this type does not confer an entitlement to the continued existence of the post to which it relates.
It thus appears that sufficient reasons underlay the abolition of the complainant’s post to justify that decision and accordingly that the disputed decision not to renew his appointment was itself based on valid, objective reasons, in compliance with the requirement recalled in consideration 16(b) [...].
Keywords:
abolition of post; motivation; outsourcing; post description;
Consideration 18
Extract:
The complainant [...] submits that the decision not to renew his appointment is unlawful because proper notice and reasons were not given for the decision to abolish his post, on which the non-renewal decision must necessarily have been based.
However, while it is true that the Tribunal’s case law requires that a decision to abolish a post satisfy these conditions (see in particular Judgment 3041, consideration 8), they were indeed satisfied in this case.
Reference(s)
ILOAT Judgment(s): 3041
Keywords:
motivation; non-renewal of contract;
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