Unsatisfactory service (398,-666)
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Judgment 4840
138th Session, 2024
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision not to renew her fixed-term contract due to underperformance after placing her on a three-month Performance Improvement Plan.
Consideration 10
Extract:
[A]n international organization must comply with the procedures it has established for evaluating performance before deciding to terminate or not to renew a contract for unsatisfactory performance. In Judgment 4666, consideration 4, the Tribunal aptly stated the following in this respect:
“An examination of a staff member’s assessment report before taking any decision not to renew that person’s contract on the basis of unsatisfactory performance is a fundamental obligation, non-compliance with which constitutes a procedural flaw that has the effect of an essential fact being overlooked (see, in particular, Judgments 2992, consideration 18, 2096, consideration 13, and the case law cited therein).”
In Judgment 3417, also involving IOM, this principle was enunciated in no uncertain terms at consideration 6:
“However while there is an undoubted right of an organisation to decide not to renew a fixed-term contract, it does not follow that an organisation is, additionally, immune from any liability if it has failed to follow its own procedures designed to monitor, assess and evaluate staff performance and progress. The fundamental purpose of such procedures is to explicitly alert a staff member to identified deficiencies in her or his performance and thus give the staff member an opportunity to address those deficiencies and improve performance. The interaction of such procedures and decisions not to renew fixed-term contracts was discussed by the Tribunal in Judgment 2991, under 13:
‘It is a general principle of international civil service law that there must be a valid reason for any decision not to renew a fixed-term contract. If the reason given is the unsatisfactory nature of the performance of the staff member concerned, who is entitled to be informed in a timely manner as to the unsatisfactory aspects of his or her service, the organisation must base its decision on an assessment of that person’s work carried out in compliance with previously established rules [...].’”
This is entirely consistent with the related principle to the effect that an organization cannot base an adverse decision on a staff member’s unsatisfactory performance if it has not complied with the rules established to evaluate that performance (see, for example, Judgments 3932, consideration 21, and 3252, consideration 8, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 2096, 2991, 2992, 3252, 3417, 3932, 4666
Keywords:
breach; due process; duty to substantiate decision; fixed-term; non-renewal of contract; patere legem; performance evaluation; rules of the organisation; unsatisfactory service;
Consideration 29
Extract:
Firm and constant precedent has it that an international organization has a duty to provide valid reasons for a decision not to renew a fixed-term contract. For example, in Judgment 4503, consideration 7, the Tribunal stated the following in support of this principle:
“Even though an organization is generally under no obligation to extend a fixed-term contract or to reassign someone whose fixed-term contract is expiring, unless it is specifically provided by a provision in the staff rules or regulations, the reason for the non-renewal must be valid (and not an excuse to get rid of a staff member) and be notified within a reasonable time (see Judgments 1128, consideration 2, 1154, consideration 4, 1983, consideration 6, 2406, consideration 14, 3353, consideration 15, 3582, consideration 9, 3586, consideration 10, 3626, consideration 12, and 3769, consideration 7).
An international organization is under an obligation to consider whether or not it is in its interests to renew a contract and to make a decision accordingly: though such a decision is discretionary, it cannot be arbitrary or irrational; there must be a good reason for it and the reason must be given (see Judgment 1128, consideration 2).”
In Judgment 3586, consideration 6, the Tribunal further clarified that “[t]hese grounds of review are applicable notwithstanding that the Tribunal has consistently stated, in Judgment 3444, [consideration] 3, for example, that an employee who is in the service of an international organization on a fixed-term contract does not have a right to the renewal of the contract when it expires and the complainant’s terms of appointment contained a similar provision”.
Reference(s)
ILOAT Judgment(s): 1128, 3444, 3586, 4503
Keywords:
breach; due process; duty to substantiate decision; fixed-term; non-renewal of contract; patere legem; performance evaluation; rules of the organisation; unsatisfactory service;
Consideration 5
Extract:
[T]he Tribunal disagrees with IOM’s assertion that the complaint is allegedly irreceivable (for failure to exhaust the internal means of redress, as the underlying appeal was not filed within the applicable deadline), insofar as it concerns the decisions, communicated to the complainant on 13 June 2019, to establish the PIP (including any alleged violation of the SES process) and to extend the complainant’s contract for a three-month period corresponding to the PIP’s duration. The Tribunal considers that a staff member may challenge the decision to subject her to a PIP in the context of an appeal against the final decision taken at the end of the PIP process. In Judgment 3713, consideration 3, the Tribunal recalled that:
“[I]t is obvious that the setting of a performance objective is merely a step in the process of evaluating the performance of employees. It is firmly established by the Tribunal’s case law that a measure of this kind can only be challenged in the context of an appeal against the final decision taken at the end of the process in question (see for example Judgment 2366, consideration 16, or Judgment 3198, consideration 13).” (See also Judgment 3890, consideration 5.)
In the present case, the decision taken at the end of the PIP process was a decision not to renew the complainant’s fixed-term contract due to underperformance and this decision resulted in the complainant being separated from IOM. This being so, the Tribunal considers that the above cited case law from Judgments 3713, consideration 3, and 3890, consideration 5, is equally applicable in a case such as the present. And given that the complainant impugns her final contract extension and ultimate non-renewal, it is of no relevance whether the issue of her prior three-month extension is receivable.
Reference(s)
ILOAT Judgment(s): 2366, 3198, 3713, 3890
Keywords:
final decision; performance; performance evaluation; performance report; step in the procedure; unsatisfactory service;
Consideration 20
Extract:
[A]s a result, the complainant was ultimately not provided with a full three months to improve her performance, even though it was initially determined by the organization that this was the necessary period established for improvement. In addition, while the draft PIP contemplated holding meetings every two weeks, in the end only four meetings took place to discuss the complainant’s PIP (24 July, 28 August, 4 September and 6 October 2019). And while the complainant was told at the 4 September meeting that her fixed-term contract would be renewed for six months, at the 6 October meeting that followed, she was rather notified of the non-renewal of that fixed-term contract beyond its expiry on 31 October 2019 because of the alleged sudden deterioration of her performance after mid-September.
It follows that, on this basis alone, the PIP process was irregular and procedurally flawed, as was the subsequent decision not to renew the complainant’s contract based on the results of that PIP.
Keywords:
breach; due process; patere legem; performance; performance evaluation; performance report; rules of the organisation; unsatisfactory service;
Considerations 23-24
Extract:
[T]he CoM thus failed to give the complainant reasonable time to improve her performance between the time that he recognized that it had improved sufficiently enough to warrant a longer contract renewal and the last-minute reversal of this view that led to the sudden imposition of the decision of non-renewal.
In this regard, the Tribunal considers that the Organization breached its duty to act in good faith by failing to provide adequate time for the complainant to improve her performance. The Tribunal recalls its well-settled case law that in terms of alleged unsatisfactory performance, a staff member should not only be warned but also given an opportunity to improve and correct the alleged poor or unsatisfactory performance. In Judgment 3282, consideration 5, it stated the following in this respect:
“As in Judgment 2916, under 4, the Tribunal holds that ‘an organisation may not in good faith end someone’s appointment for poor performance without first warning him and giving him an opportunity to do better [...]. Moreover, it cannot base an adverse decision on a staff member’s unsatisfactory performance if it has not complied with the rules established to evaluate that performance [...].’”
Similarly, in Judgment 3026, consideration 8, the Tribunal recalled that “[a]n opportunity to improve requires not only that the staff member be made aware of the matters requiring improvement, but, also, that he or she be given a reasonable time for that improvement to occur”.
Reference(s)
ILOAT Judgment(s): 2916, 3026, 3282
Keywords:
breach; due process; non-renewal of contract; patere legem; performance; performance evaluation; performance report; rules of the organisation; unsatisfactory service; warning; work appraisal;
Judgment keywords
Keywords:
breach; complaint allowed; complaint allowed in part; due process; duty to substantiate decision; fixed-term; non-renewal of contract; patere legem; performance evaluation; rules of the organisation; unsatisfactory service;
Judgment 4770
137th Session, 2024
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss him for misconduct.
Consideration 18
Extract:
[I]n the present case, since the complainant’s actions could constitute misconduct, the proper procedure to be followed was the disciplinary one, which best safeguarded his right of defence, even though his conduct could also be regarded as showing unsatisfactory performance.
Keywords:
disciplinary procedure; misconduct; unsatisfactory service;
Judgment 4678
136th Session, 2023
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decisions not to extend his fixed-term contract due to unsatisfactory performance and to withhold his within-grade salary increment.
Judgment keywords
Keywords:
complaint dismissed; fixed-term; non-renewal of contract; unsatisfactory service;
Consideration 4
Extract:
[T]he Tribunal recalls its well-established case law regarding decisions concerning staff performance appraisals and renewal of fixed-term appointments. Organizations have wide discretion in taking such decisions, which are therefore subject to only limited review by the Tribunal, which will interfere only if a decision was taken in breach of applicable rules on competence, form or procedure, if it was based on a mistake of fact or of law, if an essential fact was overlooked, if a clearly mistaken conclusion was drawn from the facts, or if there was abuse of authority (see Judgment 4170, consideration 9, and the case law cited therein). Where the reason for not renewing a contract is the unsatisfactory nature of the performance of a staff member, who is entitled to be informed in a timely manner as to the unsatisfactory aspects of her or his service, the organization can base its decision only on an assessment carried out in compliance with established rules (see, in particular, Judgment 2991, consideration 13, and the case law cited therein). This presupposes that the person in question has been informed in advance of what is expected of her or him, in particular by the communication of a precise description of the objectives set (see Judgment 3148, consideration 25).
Reference(s)
ILOAT Judgment(s): 2991, 3148, 4170
Keywords:
fixed-term; non-renewal of contract; performance; role of the tribunal; unsatisfactory service;
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 16-18
Extract:
Certainly in the case of unsatisfactory performance, the Tribunal’s case law casts a duty on the organisation to inform a staff member of their unsatisfactory performance and effectively give them a warning that their performance needs to improve otherwise there is a risk of dismissal. In Judgment 3911 the Tribunal said:
[…]
There is no bright line distinguishing or separating conduct which constitutes unsatisfactory performance and some conduct which can be characterised as misconduct. The same conduct may be both. Judgment 4540 illustrates this point. Plainly, there will be situations where conduct constituting misconduct which could not be simply characterised as unsatisfactory performance, can lead to dismissal without any warning. Obvious examples would be theft, fraud or a serious assault on a fellow staff member occasioning actual bodily harm. That is one extreme. However, in circumstances such as the present, where generally the essential complaint was about the management style of a staff member (albeit, in this case, a forceful management style characterised as harassment by the Organization), it could be expected that the person concerned would be warned or counselled that her or his management style needed to alter, perhaps even radically and quickly, and if it did not, dismissal might follow. That is particularly so if the conduct is remediable and specific aspects of the conduct are not, in isolation, egregious even if, cumulatively, they might be. As noted earlier in relation to these proceedings, 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 the complainant.
Her plea that she received no warning or counselling and should have, is well founded. The decision to dismiss the complainant should be set aside.
Reference(s)
ILOAT Judgment(s): 3911, 4540
Keywords:
harassment; misconduct; unsatisfactory service; warning;
Judgment 4666
136th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his negative performance assessment and the termination of his fixed-term appointment for unsatisfactory service.
Consideration 4
Extract:
[T]he Tribunal recalls first of all that, under its settled case law, the assessment of an employee’s merit during a specified period involves a value judgement and it cannot substitute its own opinion for the assessment made by the competent bodies of the qualities, performance and conduct of the person concerned. The Tribunal will interfere only if a decision was taken in breach of applicable rules on competence, form or procedure, if it was based on a mistake of law or of fact, if an essential fact was overlooked, if a clearly mistaken conclusion was drawn from the facts, or if there was abuse of authority (see, for example, Judgments 4543, consideration 4, 4169, consideration 7, 4010, consideration 5, 3268, consideration 9, and 3039, consideration 7).
An examination of a staff member’s assessment report before taking any decision not to renew that person’s contract on the basis of unsatisfactory performance is a fundamental obligation, non-compliance with which constitutes a procedural flaw that has the effect of an essential fact being overlooked (see, in particular, Judgments 2992, consideration 18, 2096, consideration 13, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 2096, 2992, 3039, 3268, 4010, 4169, 4543
Keywords:
non-renewal of contract; performance evaluation; unsatisfactory service;
Judgment 4462
133rd Session, 2022
World Trade Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the Director-General’s decision of 2 May 2019 not to modify his performance evaluation report for 2017 and not to renew his fixed-term contract.
Consideration 18
Extract:
[T]he Tribunal reiterates that, under its case law, an employee who is in the service of an international organisation on a fixed-term contract does not have a right to the renewal of the contract when it expires (see, for example, Judgment 3444, consideration 3). It is likewise well settled in the Tribunal’s case law that “an organisation has a wide discretion in deciding whether to renew a fixed-term appointment and its right to refuse to renew can be based on unsatisfactory performance”. It follows that “such a discretionary decision can be successfully impugned [only] if it is fatally flawed by, for example, procedural defects, a failure to take account of some essential fact, abuse or misuse of authority, or if it was based on an error of fact or of law” (see Judgments 1262, consideration 4, 3586, consideration 6, 3679, consideration 10, 3743, consideration 2, and 3932, consideration 21).
The Tribunal has also consistently held that “an organisation cannot base an adverse decision on a staff member’s unsatisfactory performance if it has not complied with the rules established to evaluate that performance” (see Judgment 3252, consideration 8, and the case law cited therein, Judgment 3932, consideration 21, and the case law cited therein, and Judgment 4289, consideration 7).
Reference(s)
ILOAT Judgment(s): 1262, 3252, 3444, 3586, 3679, 3743, 3932, 3932, 4289
Keywords:
discretion; fixed-term; non-renewal of contract; role of the tribunal; unsatisfactory service;
Judgment 4450
133rd Session, 2022
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate her appointment at the end of her probationary period for unsatisfactory performance.
Judgment keywords
Keywords:
complaint dismissed; probationary period; unsatisfactory service;
Judgment 4115
127th Session, 2019
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to downgrade him for serious misconduct.
Consideration 13
Extract:
The disciplinary proceedings were initiated before the appraisal period concluded. In Judgment 3224 the Tribunal said at consideration 7 that an organisation cannot base an adverse decision on a staff member’s unsatisfactory performance if it has not complied with the rules governing the evaluation of that performance. The decision to commence disciplinary proceedings can, for the purposes of the application of this principle, be characterised as an adverse decision. Even if the EPO believed that nothing was going to change, in terms of the complainant’s conduct, between the time the disciplinary proceedings were commenced and the conclusion of the appraisal period a little over a month later, it was nonetheless obliged to complete the assessment of the complainant’s performance in accordance with Circular No. 366 before initiating the disciplinary proceedings.
Keywords:
disciplinary procedure; due process; organisation's duties; patere legem; performance evaluation; unsatisfactory service; work appraisal;
Judgment 4062
127th Session, 2019
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision not to renew her fixed-term contract on the grounds of unsatisfactory performance.
Consideration 9
Extract:
With respect to the complainant, it is true that the Organization had prepared a performance improvement plan, for which paragraphs 16 et seq. of item 14.4 of the Human Resources Manual provide in the event that a staff member’s performance is deemed unsatisfactory, which was implemented over a period of three months, from March to June 2013. However, the evidence shows that as the complainant’s direct supervisor was not sufficiently available, the requirements of the plan were not fully observed. Indeed, whereas the plan provided for, in particular, weekly meetings between the supervisor and the complainant
in order to define her objectives, the Organization does not seriously dispute that these meetings were not actually held since, apart form the meeting convened for the final assessment, only two meetings between these two persons on the implementation of the plan were organised, on 29 April and 9 July 2013.
It follows from the foregoing that the complainant did not receive the regular feedback from her supervisors that she would have needed in this case in order to substantially improve the quality of her performance.
Keywords:
performance evaluation; unsatisfactory service;
Judgment keywords
Keywords:
complaint allowed; decision quashed; non-renewal of contract; unsatisfactory service;
Judgment 3962
125th Session, 2018
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to downgrade her, reassign her to another position and place her on an additional period of probation.
Considerations 10-11
Extract:
[T]he provisions of Article 13 [of the Service Regulations] were clear. A probationary period occurs in the three circumstances specified in the Article. None were the position the complainant was in at the time of, and as a result of, the decision of 7 January 2015 as implemented in early 2015 nor at the time of the impugned decision. Accordingly, the EPO was not entitled to place the complainant on probation and quite plainly was not entitled to say she could be dismissed under Article 13(4)(b). The decision to place the complainant on probation was unlawful.
[...]
The provision does not transmogrify incompetence into conduct in respect of which disciplinary action might be taken and a disciplinary measure imposed (see Judgment 918, consideration 11).
Reference(s)
Organization rules reference: Article 13 of the Service Regulations
ILOAT Judgment(s): 918
Keywords:
patere legem; probationary period; unsatisfactory service;
Judgment 3932
125th Session, 2018
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision not to renew her fixed-term appointment due to unsatisfactory performance.
Considerations 21 & 26
Extract:
The determinative issue in this case is whether the evaluation of the complainant’s performance was procedurally flawed. It is well settled in the Tribunal’s case law that “an organisation has a wide discretion in deciding whether to renew a fixed-term appointment and its right to refuse to renew can be based on unsatisfactory performance”. As well, “such a discretionary decision can be successfully impugned if it is fatally flawed by, for example, procedural defects, a failure to take account of some essential fact, abuse or misuse of authority, or if it was based on an error of fact or of law” (see Judgment 3743, consideration 2, and the cases cited therein). The Tribunal has also consistently held that “an organisation cannot base an adverse decision on a staff member’s unsatisfactory performance if it has not complied with the rules established to evaluate that performance” (see Judgment 3252, consideration 8, and the case cited therein).
[...]
It was only in the memorandum of 9 July 2012 that the complainant was informed of the extensive deficiencies in her performance both in terms of her duties and conduct. This letter cannot be viewed as a proper or fair evaluation for a number of reasons. First, it was not in compliance with the mandatory PEMS. Second, other than the deficiencies identified in the audit attributed to the complainant, the letter does not give any detail with respect to when and what the observations were and which interactions with other colleagues at headquarters and in the SAP gave rise to concerns. [...] Third, the unilateral determination that the eleven deficiencies identified in the audit were solely attributable to the complainant and that the renewal of her fixed-term contract was, therefore, in jeopardy, without providing the complainant with an opportunity to respond, was a clear breach of the complainant’s due process rights. This was further exacerbated by her supervisor’s and the Director, OSD’s failure to reply to or take into account the complainant’s extensive response to the alleged deficiencies attributed to her in the audit report.
Reference(s)
ILOAT Judgment(s): 3252, 3743
Keywords:
abuse of power; misuse of authority; non-renewal of contract; reorganisation; unsatisfactory service; work appraisal;
Judgment keywords
Keywords:
complaint allowed; decision quashed; fixed-term; non-renewal of contract; unsatisfactory service;
Judgment 3911
125th Session, 2018
ITER International Fusion Energy Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his appointment for unsatisfactory performance.
Consideration 3
Extract:
Precedent has it that in terminating a staff member’s employment, an international organization must follow its own rules. Accordingly, the Tribunal has stated that it would set aside an adverse decision, such as the one in the present case which terminated the complainant’s employment, where the decision was made on the basis of an unsatisfactory rating in an appraisal report for which the applicable procedural rules were not followed (see Judgment 3239, consideration 18).
Reference(s)
ILOAT Judgment(s): 3239
Keywords:
termination of employment; unsatisfactory service;
Consideration 13
Extract:
[W]hile the right to a prior written warning may be conferred by an organization’s internal rules, the Tribunal has also stated that it may arise from a general principle of law based on the organization’s duty of good faith and duty of care to its staff members.
Keywords:
general principle; right to reply; unsatisfactory service;
Consideration 14
Extract:
It is noteworthy that the decision in Judgment 2529, consideration 15, was made in reliance on the following statement of principle in Judgment 2414, consideration 23:
“15. The Tribunal’s case law is voluminous and consistent to the effect that an organisation owes it to its employees, especially probationers, to guide them in the performance of their duties and to warn them in specific terms if they are not giving satisfaction and are in risk of dismissal. (See Judgment 1212.) More recently, in Judgment 2414 the Tribunal held that:
‘23. [...] A staff member whose service is not considered satisfactory is entitled to be informed in a timely manner as to the unsatisfactory aspects of his or her service so that steps can be taken to remedy the situation. Moreover, he or she is entitled to have objectives set in advance so that he or she will know the yardstick by which future performance will be assessed. These are fundamental aspects of the duty of an international organisation to act in good faith towards its staff members and to respect their dignity. That is why it was said in Judgment 2170 that an organisation must ‘conduct its affairs in a way that allows its employees to rely on the fact that [its rules] will be followed’.”
Reference(s)
ILOAT Judgment(s): 1212, 2170, 2414, 2529
Keywords:
unsatisfactory service; warning;
Judgment keywords
Keywords:
complaint allowed; decision quashed; termination of employment; unsatisfactory service;
Judgment 3853
124th Session, 2017
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his contract on the grounds of unsatisfactory service.
Judgment keywords
Keywords:
complaint allowed; termination of employment; unsatisfactory service;
Consideration 6
Extract:
[A] distinction can be drawn between an allegation of unsatisfactory service and an allegation of misconduct (see, for example, Judgments 247, consideration 13, 1163, consideration 5, and 1208, consideration 2). An allegation of unsatisfactory conduct must involve disciplinary procedures but this is not so if the allegation is simply one of unsatisfactory service (see, for example, Judgments 1501, consideration 3, and 1724, consideration 14).
Reference(s)
ILOAT Judgment(s): 247, 1163, 1208, 1501, 1724
Keywords:
disciplinary procedure; misconduct; unsatisfactory service;
Judgment 3678
122nd Session, 2016
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss him at the end of his probation period.
Consideration 2
Extract:
It is true that there is no evidence in the file to show that the Organization formally notified the complainant during his probation period that there was an objective risk that his appointment would not be confirmed at the end of that period. However, it is clear from the end-probation period report of November 2013, which was forwarded to him and on which he in fact commented, that his supervisor considered that his performance fell short of the expected level. In addition [...], the complainant was informed on several occasions during his probation period that he was not achieving the objectives which had been set for him in his induction interview. In these circumstances, the complainant must have been aware that he ran a serious risk of not having his appointment confirmed at the end of his probation period.
Keywords:
judicial review; organisation's duties; probationary period; termination of employment; unsatisfactory service; work appraisal;
Judgment 3613
121st Session, 2016
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his employment for alleged unsatisfactory performance, the Global Fund’s refusal to retract a News Release published on the date of the termination of his employment, and the decision to maintain the News Release on the Fund’s website and its refusal to award compensation for excessive publication, defamation and continued breach of privacy.
Consideration 27
Extract:
It is well settled in the Tribunal’s case law that a staff member whose performance is not considered satisfactory is entitled to be
informed in a timely manner as to the unsatisfactory aspects of her or his performance so that steps may be taken to remedy the deficiencies. The staff member is also entitled to have objectives set in advance so that she or he will know the basis upon which future performance will be based and that their appointment is in jeopardy if there is no improvement. As well, an organization may not terminate a staff member for unsatisfactory performance unless it has complied with its own rules to evaluate that performance. As stated in Judgment 2414, under 23, “[t]hese are fundamental aspects of the duty of an international organisation to act in good faith towards its staff members and to respect their dignity”.
Reference(s)
ILOAT Judgment(s): 2414
Keywords:
fixed-term; non-renewal of contract; performance report; unsatisfactory service; work appraisal;
Judgment 3286
116th Session, 2014
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: Non-extension of a fixed-term contract. Failure to investigate allegations of harassment.
Judgment keywords
Keywords:
complaint allowed; unsatisfactory service;
Consideration 25
Extract:
"Even if the complainant was perceived to be a difficult staff member to deal with and was perceived to have been performing unsatisfactorily in fairly fundamental ways, she was entitled to have the unsatisfactory performance procedures followed and probably well before the decision was taken not to renew her contract [...]."
Keywords:
non-renewal of contract; organisation's duties; unsatisfactory service;
Judgment 3282
116th Session, 2014
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant successfully challenged the decision not to renew his contract based on an "overall assessment" that his performance was below the acceptable level.
Consideration 5
Extract:
As in Judgment 2916, under 4, the Tribunal holds that “an organisation may not in good faith end someone’s appointment for poor performance without first warning him and giving him an opportunity to do better […]. Moreover, it cannot base an adverse decision on a staff member’s unsatisfactory performance if it has not complied with the rules established to evaluate that performance […].” [...] Consistent case law states that “[a] staff member whose service is not considered satisfactory is entitled to be informed in a timely manner as to the unsatisfactory aspects of his or her service so that steps can be taken to remedy the situation” (see Judgment 2414, under 23).
Reference(s)
ILOAT Judgment(s): 2414, 2916
Keywords:
fixed-term; non-renewal of contract; performance report; unsatisfactory service; work appraisal;
Judgment 3264
116th Session, 2014
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant successfully impugns the decision not to renew her contract after an extension of her probationary period and is granted damages.
Judgment keywords
Keywords:
breach; complaint allowed; confidential evidence; decision quashed; disclosure of evidence; discretion; due process; duty to inform; extension of contract; general principle; good faith; judicial review; non-renewal of contract; organisation's duties; performance report; probationary period; procedural flaw; respect for dignity; right to reply; unsatisfactory service; work appraisal;
Consideration 11
Extract:
"The purpose of probation is to give an organisation an opportunity to evaluate a probationer’s suitability for a position (see Judgment 2646, under 5). This gives rise to corollary obligations on the part of the organisation to warn a staff member in a timely manner that her or his performance is unsatisfactory, to give the staff member guidance and an opportunity to improve and to set objectives against which improvement can be measured. These are “fundamental aspects of the duty of an international organisation to act in good faith towards its staff members and to respect their dignity” (see Judgment 2414, under 23)."
Reference(s)
ILOAT Judgment(s): 2414, 2646
Keywords:
duty to inform; good faith; organisation's duties; probationary period; respect for dignity; unsatisfactory service;
Judgment 3252
116th Session, 2014
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to extend her fixed-term contract for a period of one year instead of three years on the basis of an adverse evaluation report.
Consideration 8
Extract:
"There is a general principle applied by this Tribunal that an organisation cannot base an adverse decision on a staff member’s unsatisfactory performance if it has not complied with the rules established to evaluate that performance (see Judgment 2414, consideration 24)."
Reference(s)
ILOAT Judgment(s): 2414
Keywords:
contract; decision; fixed-term; grounds; patere legem; unsatisfactory service; work appraisal;
Judgment 3240
115th Session, 2013
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The Tribunal found that the Organization had acted in breach of its own rules on performance appraisal and probationary periods.
Consideration 21
Extract:
"It is a well-established principle governing probation that in addition to “[identifying] in a timely fashion the unsatisfactory aspects of the performance so that remedial steps may be taken”, an organisation must also “give a specific warning that the continued employment is in jeopardy” (see Judgment 2788, under 1)."
Reference(s)
ILOAT Judgment(s): 2788
Keywords:
organisation; organisation's duties; probationary period; purpose; unsatisfactory service; warning; work appraisal;
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