Rights of International Civil Servants on Abolition of Post
Laurence Fauth
Legal Advisor to the IAEA Staff Council
October 2018
In the career of any international civil servant they may face a situation where management is planning or has already announced the abolition of their post. In many cases, the abolition of post will be a legitimate exercise of discretionary authority. In others, the abolition may not be justified and staff members should be aware of their rights.
In Judgment No. 2802, the ILOAT held that “[r]estructuring is, itself, an objective and valid ground for the abolition of a post, provided that it is a genuine restructuring and is not motivated by extraneous considerations such as bias or ill will towards the incumbent of the post.” With respect to whether a restructuring is genuine, the Tribunal will assess the written documents and memos from management detailing the restructuring. If only one or a handful of posts is affected, the Tribunal may not give the organization the benefit of the doubt. It may also inquire as to whether the staff member was consulted about the abolition of post in advance although this is perhaps not strictly required in every case.
Staff members with career appointments have better job security than those on fixed
-term appointments, as there is generally a duty of good faith on the organization to look for other assignments for career staff although the staff member must normally be proactive and apply for vacant posts. When faced with abolition of post, staff members should also look to see whether the restructuring or changes are permitted by the staff regulations or rules (including the financial regulations). In Judgment No. 2742, the ILOAT held that the Executive Head’s decision to strengthen the internal audit service could not be accomplished by abolition of the old service with a new service since the old service was specifically called for in the financial regulations approved by Member States. Subsequent approval by the Member States of the new service did not render
the abolition of post valid.
Finally, over the last few years, the ILOAT has held that if an abolition of post is based on financial constraints, the organization must prove that actual financial stress existed by providing financial information to the staff member and the appeal board in the event of an internal appeal. In a trio of judgments, the Tribunal has decided that failure to produce financial records to prove financial constraints entitled the complainants to a significant remedy (3586, 3688, and 3948).
In the event of receipt of abolition of post, it is important to consult a staff representative to discuss your concerns and what steps may be taken in the short term.
In the career of any international civil servant they may face a situation where management is planning or has already announced the abolition of their post. In many cases, the abolition of post will be a legitimate exercise of discretionary authority. In others, the abolition may not be justified and staff members should be aware of their rights.