Judgment No. 4231
Decision
1. The impugned decision of 12 March 2018 and the decisions of 4 July 2014 and 1 December 2014 are set aside insofar as they concern the placement of the complainant on special leave.
2. The FAO shall pay the complainant 10,000 United States dollars in moral damages.
3. The FAO shall also pay the complainant 4,000 United States dollars in costs.
4. All other claims are dismissed.
Summary
The complainant challenges the decision not to extend his fixed-term appointment and to place him on special leave with pay until his contract expired.
Judgment keywords
Keywords
complaint allowed; decision quashed; fixed-term; non-renewal of contract; leave with pay
Consideration 2
Extract:
[T]he complainant’s claim for punitive damages is irreceivable in the Tribunal as it was not raised in the internal appeal.
Keywords
new claim; punitive damages
Consideration 3
Extract:
The Tribunal’s case law states that an organisation enjoys wide discretion in deciding whether or not to renew a fixed-term appointment. The exercise of such discretion is subject to only limited review as the Tribunal respects the organisation’s freedom to determine its own requirements and the career prospects of staff. However, the discretion is not unfettered and the Tribunal will set the decision aside if it was taken without authority or in breach of a rule of form or of procedure, or if it rested on an error of fact or of law, or if some essential fact was overlooked, or if there was abuse of authority, or if clearly mistaken conclusions were drawn from the evidence (see, for example, Judgments 4062, consideration 6, and 4146, consideration 3).
Reference(s)
Jugement(s) TAOIT: 4062, 4146
Keywords
fixed-term; non-renewal of contract; discretion
Consideration 10
Extract:
The complainant’s plea that the non-extension of his appointment was a disguised disciplinary measure amounting to constructive dismissal is unfounded. In the first place, the notion of constructive dismissal is inapplicable in the present case. The FAO opted not to extend his contract on its expiry. Constructive dismissal, on the other hand, signifies that an organisation has breached the terms of a staff member’s contract in such a way as to indicate that it will no longer be bound by that contract. A staff member may treat that as constituting constructive dismissal with all the legal consequences that flow from an unlawful termination of the contract, even if she or he has resigned (see Judgments 2745, consideration 13, and 2967, consideration 9). Moreover, in the Tribunal’s view, the circumstances which culminated in the non-extension may lead to conjecture (but are not proof) that the decision may have been a hidden sanction. This is given the contents of the exchanges in his progress report of 8 June 2013 to the Deputy Director-General for Operations, his letter of 5 May 2014 to the Director-General; the latter’s reply of 9 June 2014 and the complainant’s response of 17 June 2014 culminating in the letter of 4 July 2014, which contains the contested decision. However, as the Tribunal has consistently stated, in Judgment 2907, consideration 23, for example, “the existence of a hidden disciplinary measure cannot be inferred from mere conjecture and could not be accepted unless it were proven”.
Reference(s)
Jugement(s) TAOIT: 2745, 2907, 2967
Keywords
constructive dismissal; disguised disciplinary measure
Consideration 11
Extract:
The complainant argues that the FAO had a duty to reassign him to another post. He states that “even if the Director-General no longer wished [him] to remain in [his] position, there was a duty to consider [him] for other postings as an internal candidate in need [of] placement” and that regarding his placement on special leave with pay, “it should be noted that this occurred without any undertaking by the Administration to see if there were some other post[s] for which [his] services could be effectively utilized”, given that there were posts for which he was fully suited. He insists that this was one procedural issue which the Appeals Committee failed to consider in detail reflecting disregard for due process. These pleas however fail. Ordinarily, in the absence of a specific provision to the contrary, an organization’s duty to reassign a staff member arises only when a post is abolished (see, for example, Judgment 4037, consideration 12).
Reference(s)
Jugement(s) TAOIT: 4037
Keywords
reassignment; non-renewal of contract
Consideration 11
Extract:
The complainant’s further plea that his right to due process was breached because the Appeals Committee did not hold a hearing in which witnesses were called also fails. According to Staff Rule 331.3.62, it is within the discretion of the Appeals Committee to determine whether hearings are necessary so it was under no obligation to call the witnesses whom the complainant wished it to hear (see, for example, Judgment 3846, consideration 6).
Reference(s)
Jugement(s) TAOIT: 3846
Keywords
oral proceedings; due process; internal procedure
Considerations 13-14
Extract:
[T]he Tribunal’s finding in consideration 7 of Judgment 3596 merely accepted that special leave pursuant to Staff Rule 302.5.21 is intended as a privilege for the benefit of staff members for the reasons stated in that Rule “or for other important reasons”, which, in effect, must similarly be for the benefit of staff members by virtue of the ejusdem generis rule. Accordingly, in that case, as in the present case, the FAO committed an error of law and an abuse of authority when it used Staff Rule 302.5.21 unilaterally, for a purpose which was extraneous to the Rule, and in the manner in which it did.
[T]he complainant’s plea that the FAO committed an error of law and an abuse of authority when it placed him on special leave with pay some six months prior to the expiration of his appointment is well founded. The impugned decision of 12 March 2018, as well as the decisions of 4 July 2014 and 1 December 2014, will be set aside insofar as they concern the placement of the complainant on special leave. The complainant will be awarded moral damages for the harm to his professional reputation and to his dignity that he states he has suffered as a result of the unlawfulness of the decisions.
Reference(s)
Jugement(s) TAOIT: 3596
Keywords
moral injury; respect for dignity; special leave; leave with pay
Consideration 14
Extract:
As the complainant has not shown that the non-renewal of his contract was unlawful, the question of reinstatement does not arise.
Keywords
reinstatement; non-renewal of contract
Consideration 15
Extract:
The complainant submits that he is entitled to compensation for the inordinate delay (over three years) in the process, from the submission of his appeal to the Director-General on 29 September 2014 to the issuing of the impugned decision on 12 March 2018. The Tribunal accepts that the delay in the internal appeal process was excessive. However, the request for moral damages will be rejected as the complainant has not articulated the adverse effects of the delay.
Keywords
moral injury; delay in internal procedure
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