Legal Considerations
LAURENCE FAUTH
REPRESENTING INTERNATIONAL CIVIL SERVANTS SINCE 2002
OCTOBER 2011 – TIPS AND INFORMATION NEWSLETTER
Owing to alleged financial constraints in the last few years, the WHO has embarked on areform program which will significantly reduce the number of staff at Headquarters andRegional Offices. Recent judgments of the ILO Administrative Tribunal can help shed somelight as to the various issues, which might be raised by staff members if they decide to appeal.
In the case of Judgment n° 3038, the WHO has itself recognized that it committed someirregularities by failing to reassign the complainant to various alternative posts, which hadbeen identified by the Global Reassignment Committee. The Organization was thereforewilling to negotiate an agreeable settlement that eventually failed.
The ILOAT confirmed in its judgment the principle that in case of bona fide settlementdiscussions, the time limit of ninety days to lodge a complaint with the Tribunal is extendedand will only start at the close of the negotiations. The unlawful termination of thecomplainant’s appointment being established since the Director General accepted therecommendations of the appeals board, the Tribunal only considered the compensation andmoral damages the former staff member would be entitled to. Thus, it found that the failure ofthe settlement negotiations rested solely on the Organization: “The inordinate delay on thepart of the Organization, and its conduct during the negotiations, do not reflect the duty that isincumbent on an organisation to negotiate in good faith, or the care it should take in theimplementation of a decision.” (Consideration 20). The Organization had ignored the variousdocuments filed by the complainant, which it had requested in order to calculate the amountof compensation and had actually made no financial proposal before the complainant lodgedthe complaint with the Tribunal.
The Tribunal decided that the complainant is entitled to two years’ salary and other benefitsless earnings during those two years, significant moral damages for the way he was treated inthe reassignment process and eventually fixed a global sum of 300 000 United States dollars.The complainant was also entitled to moral damages fixed at 25 000 dollars for the delay andlack of due care and attention in implementing a decision with respect to the complainant’sappeal and finally to 20 000 dollars costs.
In the same Session (111th), the ILOAT decided upon a similar case but eventually consideredthe abolition of the post to be lawful. In Judgment n° 3041, the decision to abolish thecomplainant’s post was a proper exercise of the Organization’s discretionary authority: theabolition of her post because of the need to implement programmatic changes dictated byimproved technology, did actually result in a reduction of the number of staff in her department – one valid ground for an abolition – even if at first sight it could seem to be thecontrary as new staff members were recruited in the same division. Furthermore, the StrategicDirection and Competency Review (SDCR), which was used for the review of posts andfunctions in 2005, are only guidelines and “may apply to a greater or lesser degree dependingon the particular situation of a Department under review”. The Tribunal was therefore of theview that although the Headquarters Board of Appeal (HBA) found to the contrary, the reviewprocess which had been undertaken in her case, even if it did not strictly follow theseguidelines, was nevertheless lawful. Finally, the complainant was rightly notified of herentitlement to participate in a reassignment process led by the Global ReassignmentCommittee (although it was unable to identify a suitable alternative assignment for her).
These cases show that in the course of the abolition of posts, the WHO has to respect strictrules in order to protect its staff members. It has to be able to demonstrate that the abolition isbased on objective valid grounds, which have to be communicated, that the abolition doesreally result in the reduction of the staff and that it also respected the internal reassignment procedures.