Jugement n° 4848
Décision
The complaint is dismissed.
Synthèse
The complainant contests WIPO’s decisions (i) to advertise his post; (ii) to organise a selection process to fill his post; (iii) not to appoint him to the post without competition; (iv) to renew his fixed-term appointment for three months only; (v) to restructure his division; and (vi) to modify/redefine his post.
Mots-clés du jugement
Mots-clés
Obligations de l'organisation; Intérêt du fonctionnaire; Description de poste; Titre du poste; Prolongation de contrat; Durée du contrat; Durée déterminée; Suppression de poste; Réorganisation; Différence; Renouvellement de contrat; Requête rejetée
Considérants 6-7
Extrait:
Quite apart from any effect on the personal circumstances of a chief of a section or department, the Tribunal’s case law endorses the practice of requiring consultation with such a person in relation to plans for the reorganisation of the relevant section or department, and to not consult would ordinarily constitute a serious failure to respect the dignity of that person (see, for example, Judgments 3353, consideration 30, 3071, consideration 30, and 2861, consideration 27). In this limited context, this would be particularly so if the reorganisation had an adverse effect on the personal circumstances of the individual section or departmental chief, though this is not to suggest any member of staff adversely affected by a reorganisation must be consulted before the reorganisation occurs.
However, in this case, the rather unusual circumstances inform the content of WIPO’s duty to consult. As just noted, it is reasonable to characterise the position of the complainant as having only been nominally the Director of CID in late 2017 and early 2018. However, and notwithstanding, an attempt was made to engage with him about the proposed reorganisation, though this was resisted by the complainant, on the basis being suggested, because of his ill health. In the Tribunal’s view, the basis being suggested by WIPO was, overall, reasonable. The complainant took the position, probably legitimately, that in the circumstances, him replying in writing within four days of the email of 18 December 2017 was too burdensome given his state of health. However, he also rejected the suggestion that he take the opportunity of discussing the matter by phone with the Deputy Director General. Again, he did so because, as he put it, of the state of his health. It was not at all obvious that, at this point in very late 2017, any effective consultation could take place and it was, therefore, open to the Deputy Director General to pursue the proposed reorganisation without input from the complainant.
There is nothing in the material before the Tribunal which would warrant a conclusion that WIPO should have proceeded, in relation to its obligation to consult, on the basis that the complainant would imminently return from sick leave and actively manage the CID or, potentially, whatever organisational division might replace it. Indeed, all the signs at that time were, including the approach adopted by the complainant to the invitation to discuss the proposed reorganisation by phone, that this would not occur.
Référence(s)
ILOAT Judgment(s): 2861, 3071, 3353
Mots-clés
Obligations de l'organisation; Intérêt du fonctionnaire; Réorganisation; Congé maladie
Considérant 8
Extrait:
The other and related decisions apparent from the letter of 31 January 2018 were the decisions to offer the complainant a three-month extension of his fixed-term appointment and to advertise the position of Director of the (about to be created) CMD. In his pleas, the complainant challenges the creation of this position contending, amongst other things, it was not materially different to the position he then formally occupied and was the product of a reorganisation which was illusory rather than substantial. It is unnecessary to repeat the various ways this is put by the complainant. However, mention should be made of a submission, which is tantamount to an allegation that the reorganisation was not a bona fide exercise of an undoubtedly wide discretionary power the executive head of an international organisation has to institute administrative and other structural changes within the organisation with consequential effects on existing posts, including their redefinition or abolition (see, for example, Judgments 4599, considerations 11 and 12, 4353, consideration 7, 3238, consideration 7, and 3169, consideration 7). This is, in substance, an allegation of bad faith. However, bad faith may not be presumed, and the burden of proof is on the party that pleads it (see Judgments 4682, consideration 3, 4353, consideration 12, and 2800, consideration 21). In the present case, there is not a scintilla of evidence that the reorganisation decision did not involve a bona fide exercise of the wide discretionary power of the executive head. This plea is unfounded.
Référence(s)
ILOAT Judgment(s): 2800, 3169, 3238, 4353, 4599, 4682
Mots-clés
Charge de la preuve; Description de poste; Titre du poste; Prolongation de contrat; Durée du contrat; Durée déterminée; Suppression de poste; Réorganisation; Pouvoir d'appréciation; Différence; Mauvaise foi; Renouvellement de contrat
Considérant 10
Extrait:
[T]he role and significance of an Appeals Board opinion should be noted. It was discussed in Judgment 4488, consideration 7:
“The Tribunal’s case law establishes in, for example, Judgment 4407, at consideration 3, that an internal appeal body’s report warrants considerable deference in circumstances where its report involves a balanced and thoughtful analysis of the issues raised in the internal appeal, as it does in this case, and on its analysis its conclusions and recommendations were justified and rational, as again they are in this case (see also Judgments 3608, consideration 7, 3400, consideration 6, and 2295, consideration 10).”
It was also discussed in Judgment 3422, consideration 3:
“At this point, it is appropriate to note the observations of the Tribunal in Judgment 2295, consideration 10, that it is not the role of the Tribunal to reweigh the evidence before an internal appeals board and the conclusions of the board are entitled to considerable deference. While the case leading to Judgment 2295 involved the evaluation of evidence from witnesses about allegations of unsatisfactory behaviour in the workplace, the evaluation by any internal appeal body of matters with which they are likely to be familiar, must be given significant weight as long as the Tribunal is satisfied the appeal body has undertaken a comprehensive and thoughtful consideration of the evidence and the applicable principles and its conclusions are rational and balanced.”
Référence(s)
ILOAT Judgment(s): 2295, 3400, 3422, 3608, 4407, 4488
Mots-clés
Organe de recours interne; Déférence; Rapport de l'organe de recours interne
Considérant 12
Extrait:
The Tribunal is satisfied that there is no manifest error in the Appeal Board’s finding and conclusion that there was a material difference between the duties and responsibilities of the newly created position (Director of CMD) and those of the original position (Director of CID) as a result of the redefined organizational context, warranting advertising for the post of Director of CMD. Therefore, the Director General’s decision to extend the complainant’s contract by three months only in the soon to be abolished position of Director of CID was taken in proper exercise of his discretion.
Mots-clés
Description de poste; Titre du poste; Prolongation de contrat; Durée du contrat; Suppression de poste; Réorganisation; Pouvoir d'appréciation; Différence; Renouvellement de contrat; Erreur manifeste
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