Judgment 2599
102nd Session, 2007
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"The Tribunal notes that there is no evidence to prove that the complainant was given any kind of access to the report on which the Director General is said to have based her decision to dismiss her.
It may be concluded from the above and from the evidence in the file that the impugned decision was taken in breach of the safeguards regarding the provision of proper conditions for probation, resulting from the rules and regulations, from general principles of law and from the Tribunal's case law, and, in particular, in breach of the complainant's right to be heard.
The impugned decision must therefore be quashed."
Keywords:
breach; case law; due process; duty to inform; general principle; grounds; organisation's duties; probationary period; report; right to reply; safeguard; termination of employment;
Consideration 5
Extract:
According to the Tribunal’s case law, to which the Observatory itself refers, the Director General’s decision not to confirm the appointment of a probationer is a discretionary one. Its power of review being limited, the Tribunal will set the decision aside only if it finds a mistake of fact or of law, or a formal or procedural flaw, or a clearly mistaken conclusion on the evidence, or neglect of an essential fact or abuse of authority. The purpose of probation is to find out whether a probationer has the mettle to make a satisfactory career in the organisation. The competent authority will determine on the evidence before it whether or not to confirm the appointment and must be allowed the utmost measure of discretion in deciding whether someone it has recruited shows, not just the professional qualifications, but also the personal attributes for the particular post in which he is to be working. Only where the Tribunal finds the most serious or glaring flaw in the exercise of the Director-General’s discretion will it interfere (see Judgment 1246, under 3). The Tribunal reaffirmed that view in Judgments 2427 and 2558, amongst others.
Reference(s)
ILOAT Judgment(s): 1246, 2427, 2558
Keywords:
probationary period;
Judgment 2558
101st Session, 2006
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3(b)
Extract:
The complainant was dismissed at the end of the extension of her probationary period. She criticises the way her probation was conducted. The Tribunal considers that her criticism "is not entirely unfounded. At the time she took up her duties, her predecessor had been retired for five months and staff changes continued among officials who should have been involved in training and supervising her and who were hence responsible for assessing her performance. It is clear, therefore, that during her probationary period the complainant did not enjoy the best assistance and supervision.
However regrettable these circumstances may be, they are not such as to invalidate either the decision to extend the complainant's probationary period beyond the end of 2002 or the decision to dismiss her at the end of the extension."
Keywords:
appointment; decision; extension of contract; flaw; organisation's duties; probationary period; retirement; supervisor; termination of employment; training; vacancy; work appraisal;
Consideration 4(a)
Extract:
According to the complainant, the decision to extend her probationary period is unlawful because it was not taken by the President of the Office. "The defendant has not shown that the Principal Director of Personnel was competent or held a delegation of authority; it merely acknowledges in its reply 'that there is no decision signed by the President extending the complainant's probationary period'. It argues that this does not invalidate the decision to extend the probationary period in view of the absence of any obvious error in the assessment of the complainant's performance. This argument is surprising insofar as it clearly arises from a confusion between the formal requirements and the substantive requirements of an administrative decision. Whether a decision is justified or not in substance, whoever takes the decision must in all cases make sure beforehand that he has the power to do so and, if not, refer the matter to the competent authority for a decision."
Keywords:
competence; decision; delegated authority; executive head; extension of contract; flaw; formal flaw; formal requirements; lack of evidence; mistaken conclusion; organisation; organisation's duties; probationary period; reply; work appraisal;
Consideration 4(a)
Extract:
According to the complainant, the decision to extend her probationary period is unlawful because it was not taken by the President of the Office. "It is for the Organisation to prove that whoever decides to extend an official's probationary period, or to dismiss the official, is authorised to take that decision, either by virtue of a statutory provision, or by virtue of a lawful delegation by the person in whom such authority is vested under that provision (see Judgment 2028, under 8, third paragraph, and 11). [...] In the absence of any formal delegation by the President, the Tribunal concludes that the complainant's plea that the decision to extend her probationary period was taken ultra vires is well founded. This flaw will not lead it to set aside the decision in question, but it does justify compensating the complainant for any moral injury the flaw may have caused her."
Reference(s)
ILOAT Judgment(s): 2028
Keywords:
allowance; burden of proof; competence; consequence; decision; decision-maker; delegated authority; executive head; extension of contract; flaw; iloat; lack of evidence; moral injury; official; organisation's duties; probationary period; provision; refusal; staff regulations and rules; termination of employment;
Judgment 2529
101st Session, 2006
Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 15
Extract:
"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."
Reference(s)
ILOAT Judgment(s): 1212, 1386, 2170, 2414
Keywords:
case law; duty to inform; organisation's duties; probationary period; termination of employment; unsatisfactory service; work appraisal;
Judgment 2468
99th Session, 2005
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 16
Extract:
The complainant's appointment was terminated for unsatisfactory services. "The defendant is not wrong to point out that, except in a case of manifest error, the Tribunal will not substitute its own assessment of a staff member's services for that of the competent bodies of an international organisation. Nevertheless, such an assessment must be made in full knowledge of the facts, and the considerations on which it is based must be accurate and properly established. The Tribunal, which pays considerable attention to these issues in the case of complaints concerning dismissal at the end of a probationary period or the non-renewal of fixed-term contracts on the grounds of unsatisfactory performance, must be even more vigilant where an organisation terminates the appointment of a staff member holding a contract without limit of time, which in principle should secure him against any risk of job loss or insecurity. This applies particularly in the present case, since the staff member concerned by the termination for unsatisfactory services received on the whole satisfactory or even excellent appraisals over a period of 15 years."
Keywords:
complaint; condition; contract; different appraisals; fixed-term; grounds; judicial review; mistake of fact; non-renewal of contract; official; organisation; period; permanent appointment; probationary period; satisfactory service; termination of employment; unsatisfactory service; work appraisal;
Judgment 2427
99th Session, 2005
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 2
Extract:
"According to the case law [...], the Tribunal is competent to review the lawfulness of any decision by the Director-General to terminate a staff member's probation. In particular, it may determine whether that decision is based on errors of fact or law, or whether essential facts have not been taken into consideration, or whether clearly mistaken conclusions have been drawn from the facts, or, lastly, whether there has been an abuse of authority. The Tribunal may not, however, replace with its own the executive head's opinion of a staff member's performance, conduct or fitness for international service (see Judgment 318, considerations).
Other cases mention, as further grounds on which the Tribunal will review such decisions, a formal or procedural flaw, or lack of due process (see, for example, Judgments 13, 687, 736, 1017, 1161, 1175, 1183 and 1246) which, it has been noted, must be substantial to invalidate an end-of-probation termination decision."
Reference(s)
ILOAT Judgment(s): 13, 318, 687, 736, 1017, 1161, 1175, 1183, 1246
Keywords:
abuse of power; case law; competence of tribunal; conduct; contract; decision; decision quashed; disregard of essential fact; evidence; executive head; fitness for international civil service; flaw; formal flaw; grounds; judicial review; limits; mistake of fact; mistaken conclusion; misuse of authority; non-renewal of contract; probationary period; procedural flaw; termination of employment; tribunal; work appraisal;
Consideration 4
Extract:
"[T]he vacancy notice stipulated: «Good knowledge of English or French; basic knowledge of the other language or an understanding to acquire it rapidly». The complainant denies that the importance of acquiring rapidly a basic knowledge of French was clearly explained to him, but his denial fails to take into account that even the vacancy notice was unambiguous in that regard. The Tribunal finds, from the evidence on file, that he was sufficiently warned, at the beginning of his probation period and later on, about the language requirements for his post. It is clear, and the complainant admits, that his knowledge of French did not improve enough to enable him to participate in meetings, right to the end of his probation period. That alone constitutes sufficient cause for his negative end-of-probation report. Such cause, and the resulting termination of his appointment, could not possibly have surprised him."
Keywords:
consequence; duty to inform; grounds; knowledge of languages; non-renewal of contract; organisation's duties; probation report; probationary period; staff member's duties; termination of employment; vacancy notice;
Judgment 2172
94th Session, 2003
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 20-21
Extract:
The organisation extended the complainant's probationary period and transferred her following an unfavourable performance appraisal report. She submits that her supervisors failed to observe the procedure for the completion of performance appraisal reports. The Tribunal considers that "even if her supervisor appeared to follow the proper procedure by sending her the appraisal report [...] before the second-level supervisor had signed it, in order for the procedure to be meaningful, the second-level supervisor should not have written her comments until the complainant's supervisor had answered the memorandum [in which the complainant contested her appraisal]. The process is not a dialogue if one party does not listen to another. in this case, the complainant's supervisor did not consider the complainant's comments when preparing the evaluation. The evidence thus supports the complainant's allegation that the proper procedure was not followed [...] the decision to extend the probationary period was based on a flawed appraisal and the complainant should have been confirmed in her post."
Keywords:
breach; consequence; decision; different appraisals; extension of contract; mistake of fact; performance report; period; post; probationary period; procedural flaw; procedure before the tribunal; reply; supervisor; transfer; unsatisfactory service; work appraisal;
Judgment 2152
93rd Session, 2002
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 11 and 14
Extract:
"The requirement of good faith dealings is a two-way street. While staff members are under no obligation to assist the administration in any actions the latter may wish to take against them, they do have a duty not to so conduct themselves as to deliberately frustrate normal dealings with their employer. The latter is entitled to assume that the employees will receive and accept written communications sent to them in the normal course of affairs. [...] The fact that the complainant, by his own conduct, only took possession of the letter and became aware of his dismissal [the day after the expiry of his probation] cannot prevent the [Organisation] from having given him valid notice of dismissal."
Keywords:
date of notification; good faith; notice; probationary period; separation from service; staff member's duties; termination of employment;
Judgment 2018
90th Session, 2001
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 15
Extract:
The decision not to confirm the complainant's appointment after a probationary period and to terminate his employment prior to the expiry of his fixed-term contract is quashed. "The complainant is entitled to be reinstated in his post or in one of an equivalent grade with full salary and benefits (including any salary increases which he would have received if he had not been terminated) to the end of his fixed-term appointment."
Keywords:
allowance; condition; contract; date; fixed-term; grade; increase; post; post held by the complainant; probationary period; reconstruction of career; refusal; reinstatement; right; salary; termination of employment;
Consideration 8
Extract:
The complainant's appointment was not confirmed after a probationary period and his employment was terminated before the expiry of his fixed-term contract. "The Tribunal finds that the Staff Regulations, Rules and Administrative Directives in force at the time do not contain specific provisions for the non-confirmation of fixed-term appointments during or at the end of a probationary period. The provisions relating to the termination of fixed-term appointments without probationary periods therefore apply."
Keywords:
administrative instruction; analogy; applicable law; contract; fixed-term; no provision; probationary period; refusal; staff regulations and rules; termination of employment; written rule;
Considerations 14-15
Extract:
The complainant attacks the decision not to confirm his appointment after a probationary period and to terminate his employment prior to the expiry of his fixed-term contract. "The Tribunal [...] notes that [...] the organisation's legal division advised the administration of the procedure to be followed in terminating the complainant's appointment. Specifically [...] the administration was advised of its obligation to set up a special advisory board to investigate the case and to report back to the Director-General. This advice, like the [...] findings of the Special Advisory Board, appear inexplicably to have been simply ignored by the Director-General. In the circumstances, the impugned decision [...] must be quashed."
Keywords:
advisory body; advisory opinion; contract; decision quashed; executive head; fixed-term; organisation's duties; probationary period; procedure before the tribunal; refusal; termination of employment;
Judgment 1817
86th Session, 1999
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11(a)
Extract:
"Before dismissing someone on the grounds of performance an organisation must ordinarily give fairly prompt warning so as to allow for improvement. But all that is needed is that the staff member be aware of the risk of dismissal and of the need for improvement. If the staff member still proves unsatisfactory, dismissal will be in order even if founded on new shortcomings that are not the same as those that prompted the warning [...]. And again those rules hold good mutatis mutandis for ending probation". The Tribunal cites the case law.
Keywords:
case law; duty to inform; organisation's duties; probationary period; termination of employment; unsatisfactory service; warning; work appraisal;
Consideration 7
Extract:
"The case law says that an organisation may not take unilateral action that affects status before giving the staff member the opportunity of answering (see Judgment 1484 [...]). And that rule applies, of course, to dismissal of a probationer."
Reference(s)
ILOAT Judgment(s): 1484
Keywords:
amendment to the rules; contract; organisation's duties; probationary period; right to reply; termination of employment;
Consideration 11
Extract:
"Poor performance does not warrant ending a probationary appointment unless there is not some hope of reasonably early improvement, usually by the expiry of the probation."
Keywords:
condition; period; probationary period; termination of employment; unsatisfactory service; work appraisal;
Judgment 1696
84th Session, 1998
World Customs Organization (Customs Co-operation Council)
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"The wording of Regulation 9 (b)(3) is plain: the decision to terminate an appointment at the end of probation may be taken only 'after consultation with an advisory body', the Staff Committee." The Organisation submits that it need only speak to the Chairman. But the Committee has several members who are supposed to function as a single body. The Orgnanisation's argument postulates prior delegation of authority to the Committee's Chairman or officers. To be valid, however, such delegation must have some basis in the rules. Failing that, any action "will be ultra vires" there being wrongful failure to consult the Staff Committee, the impugned decision must, in line with patere legem, be set aside.
Reference(s)
Organization rules reference: CCC STAFF REGULATIONS 9(B)(3)
Keywords:
advisory body; advisory opinion; decision; delegated authority; due process; organisation's duties; patere legem; probationary period; procedural flaw; staff regulations and rules; termination of employment;
Judgment 1444
79th Session, 1995
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
Vide Judgment 1161, consideration 4.
Reference(s)
ILOAT Judgment(s): 1161
Keywords:
career; case law; discretion; executive head; extension of contract; probationary period; purpose; qualifications; separation from service; termination of employment;
Judgment 1418
78th Session, 1995
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"The purpose of probation is to ensure that new staff members are the best qualified. So an organisation must be allowed the widest measure of discretion in the matter and its decision will stand unless the defect is especially serious or glaring. Moreover, where the reason for refusal of confirmation is unsatisfactory performance the Tribunal will not replace the organisation's assessment with its own."
Keywords:
discretion; judicial review; limits; probationary period; purpose; termination of employment; unsatisfactory service;
Consideration 6
Extract:
"According to the case law a decision not to renew a staff member's appointment is discretionary and will be set aside only if taken without authority or in breach of a rule of form or of procedure, or if based on a mistake of fact or of law, or if some essential fact was overlooked, or if clearly mistaken conclusions were drawn from the facts, or if there was abuse of authority. Those criteria hold good for any discretionary decision, but in reviewing a decision not to confirm the appointment of a probationer the Tribunal will be particularly cautious; otherwise probation would fail to serve as a period of trial."
Keywords:
case law; contract; discretion; judicial review; limits; non-renewal of contract; probationary period; purpose;
Judgment 1386
78th Session, 1995
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 17
Extract:
Consistent precedent has it "that the administrative authority has the widest measure of discretion in confirming the appointment of a probationer (see Judgments 503, [...] under 2; 687, [...] under 2; 1052, [...] under 4; and 1161, [...] under 4). The purpose of such discretion is to ensure that the organisation may choose staff in full freedom and independence and in so doing it will assess the imponderable aspects of the probationer's personality, which must pose no threat to the harmony of staff relations. Here the Tribunal will not intervene in the administration's choice except in the event of abuse of authority or a clear mistake of law or of fact."
Reference(s)
ILOAT Judgment(s): 503, 687, 1052, 1161
Keywords:
case law; contract; criteria; discretion; judicial review; official; organisation's interest; permanent appointment; probationary period; working relations;
Consideration 18
Extract:
A probationer "has every right to expect of the administration that it will provide proper conditions for probation."
Keywords:
due process; organisation's duties; probationary period;
Consideration 27
Extract:
The complainant was wrongfully dismissed following probation. The Tribunal holds that "in material damages the EPO shall pay him an amount equivalent to the emoluments he would have earned from the date of dismissal until the end of the month in which the Tribunal delivers the present judgment. Since he has convincingly shown that he has not been employed since the EPO dismissed him, the organisation may not subtract from that amount any indemnities or other earnings he may have received during that period."
Keywords:
compensation; flaw; material damages; material injury; probationary period; reckoning; termination of employment;
Consideration 21
Extract:
"The administration is [...] at fault for not giving the complainant sufficient warning that there had been criticism of him and the success of his probation was in jeopardy. The organisation contends that he did get several oral warnings. Yet, contrary to the requirements of due administrative process, the file contains no evidence of such warnings, or their date or substance. The Tribunal is therefore unable to assess their scope."
Keywords:
due process; duty to inform; probationary period; procedural flaw; qualifications; termination of employment; warning;
Consideration 26
Extract:
"The relief the complainant seeks includes reinstatement in his post or, failing that, damages for material and moral injury [...]. The Tribunal holds that reinstatement, which could only mean reinstatement for a further probationary period, would raise insurmountable practical difficulties because of the time that has elapsed since the date of dismissal [...]. [The complainant is] entitled to full compensation for the material and moral injury he sustained."
Keywords:
compensation; date; material damages; material injury; moral injury; probationary period; refusal; reinstatement; subsidiary; termination of employment;
Judgment 1352
77th Session, 1994
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11
Extract:
"The complainant chose not to make comments on [his probationary] report and in any case, instead of being dismissed, was given another two-and-a-half months in which he might have shown his mettle. The Tribunal concludes that in the circumstances he suffered no actual injury".
Keywords:
extension of contract; lack of injury; probation report; probationary period; report; termination of employment;
Consideration 12
Extract:
"In the case of dismissal of a probationer the employer is to be allowed the widest discretion and the decision will be quashed only if the mistake or the illegality is especially serious or glaring: see, for example, Judgment 687 [...], under 2."
Reference(s)
ILOAT Judgment(s): 687
Keywords:
case law; discretion; flaw; judicial review; limits; probationary period; termination of employment;
Consideration 15
Extract:
The complainant, who was dismissed at the end of probation, alleges that his supervisor's recommendation for extension of his probation was an abuse of authority "because it was not based on any adverse comment". The Tribunal holds that "he clearly thought that the complainant had not proved himself and required more time. His recommendation was no abuse of authority."
Keywords:
abuse of power; extension of contract; lack of injury; misuse of authority; probationary period; supervisor; termination of employment;
Judgment 1246
74th Session, 1993
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 14-15
Extract:
"The purpose of Article 6.7.3 of the Staff Regulations is that the lapse of time between first and second reports should be long enough - the period prescribed is nine months - to give the probationer a proper opportunity of showing his mettle before the second report has to be made. The period of less than three months that the complainant was allowed was far too short to allow of any substantial improvement. [...] The procedural flaw caused the complainant injury."
Keywords:
cause of action; date; delay; due process; flaw; performance report; probationary period; procedural flaw; qualifications; staff regulations and rules;
Consideration 3
Extract:
"As the Tribunal has held on several occasions, for example in Judgment 1183, a decision by the Director-General not to confirm the appointment of a probationer 'is a discretionary one. Its power of review being limited, the Tribunal will set the decision aside only if it finds a mistake of fact or of law, or a formal or procedural flaw, or a clearly mistaken conclusion on the evidence, or neglect of an essential fact or abuse of authority.'"
Reference(s)
ILOAT Judgment(s): 1183
Keywords:
abuse of power; case law; decision; discretion; disregard of essential fact; extension of contract; flaw; formal flaw; judicial review; mistake of fact; mistaken conclusion; misuse of authority; probationary period; procedural flaw; refusal;
Judgment 1183
73rd Session, 1992
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
"The purpose of probation is to find out whether a probationer has the mettle to make a satisfactory career in the organization. The competent authority will determine [...] whether or not to confirm the appointment and must be allowed the utmost measure of discretion in deciding whether someone [...] shows, not just the professional qualifications, but also the personal attributes for the particular post in which he is to be working. Only where the Tribunal finds the most serious or glaring flaw in the exercise of the Director-General's discretion will it interfere."
Keywords:
career; discretion; flaw; judicial review; post; probationary period; purpose; qualifications;
Judgment 1175
73rd Session, 1992
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"As the case law makes plain - for example, judgments 736 [...] and 1161 [...] - a decision not to confirm a probationer's appointment is a matter of discretion for the President. Although the Tribunal may review the lawfulness of dismissal of a probationer, the nature of the decision is such that its power of review is limited. It will set aside the decision only if there was a mistake of fact or law, or a formal or procedural flaw, or if some essential fact was overlooked, or if a clearly mistaken conclusion was drawn from the evidence, or if there was abuse of authority."
Reference(s)
ILOAT Judgment(s): 736, 1161
Keywords:
abuse of power; case law; contract; discretion; disregard of essential fact; flaw; formal flaw; grounds; judicial review; limits; mistake of fact; mistaken conclusion; misuse of authority; probationary period; procedural flaw; termination of employment;
Consideration 5
Extract:
"The purpose of probation is to find out whether a probationer has the mettle to make a satisfactory career in the organisation. The competent authority will determine on the evidence before it, and possibly after extension of the probation as in the present case where doubt still lingers, whether to dismiss the official or to confirm the appointment. It must indeed be allowed the widest measure of discretion in determining whether someone it has recruited is suitable."
Keywords:
career; discretion; extension of contract; probationary period; qualifications; termination of employment;
Judgment 1161
72nd Session, 1992
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
"As the case law makes plain - for example, Judgments 687 [...] and 736 [...] - a decision not to confirm a probationer's appointment is a matter of discretion for the [executive head] and the Tribunal will not substitute its own judgment for the organisation's in matters that require such exercise of discretion. Although the Tribunal may review the lawfulness of dismissal of a probationer, the nature of the decision is such that its power of review is limited. It will set aside the decision only if there was a mistake of fact or law, or a formal or procedural flaw, or if some essential fact was overlooked, or if a clearly mistaken conclusion was drawn from the evidence, or if there was abuse of authority."
Reference(s)
ILOAT Judgment(s): 687, 736
Keywords:
abuse of power; case law; discretion; disregard of essential fact; flaw; formal flaw; judicial review; mistake of fact; mistaken conclusion; misuse of authority; probationary period; procedural flaw; termination of employment;
Consideration 4
Extract:
"The purpose of probation is to find out whether a probationer has the mettle to make a satisfactory career in the Organisation. The competent authority will determine on the evidence before it, and possibly after extension of the probation as in the present case where doubt still lingers, whether to dismiss the official or to confirm the appointment. It must indeed be allowed the widest measure of discretion in determining whether someone it has recruited shows the highest level of qualifications required for a post in the particular field in which he is to be working."
Keywords:
discretion; extension of contract; probationary period; qualifications; termination of employment;
Consideration 5
Extract:
"The Tribunal is satisfied that in this case the President of the Office made proper exercise of the wide discretion he enjoys under Article 13(2) [of the Service Regulations] to decline, on the grounds of poor performance, to confirm the complainant's appointment."
Reference(s)
Organization rules reference: ARTICLE 13(2) OF THE EPO SERVICE REGULATIONS
Keywords:
discretion; probationary period; staff regulations and rules; termination of employment; unsatisfactory service;
Judgment 1153
72nd Session, 1992
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
"As the case law makes plain - for example, Judgments 687 [...] and 736 [...] - a decision not to confirm a probationer's appointment is a matter of discretion [...] and the Tribunal will not substitute its own judgment for the organisation's in matters that require such exercise of discretion. [...] Although the Tribunal may review the lawfulness of the dismissal, the nature of the decision is such that its power of review is limited. It will set aside the decision only if there was a mistake of fact or law".
Reference(s)
ILOAT Judgment(s): 687, 736
Keywords:
case law; discretion; judicial review; probationary period; termination of employment;
Judgment 1127
71st Session, 1991
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
The complainant's appointment was terminated after probation. She objects to the administration's making out a supplementary probation report on her and extending - without so advising her - the period she was to spend on probation in breach of the Regulations. The pleas fail. "The probation report required by Article 36(2) [of the Staff Regulations] need not be a single document but may comprise several, even if they are made out at different dates." As to the length of her probation, it was the complainant herself who asked for the extension and it was not, in the circumstances, to her detriment.
Reference(s)
Organization rules reference: ARTICLE 36(2) OF THE EUROCONTROL STAFF REGULATIONS
Keywords:
extension of contract; formal requirements; lack of injury; period; probation report; probationary period; termination of employment; unsatisfactory service;
Consideration 30
Extract:
"A decision not to confirm a probationer's appointment is at the Director General's discretion and, according to well-established precedent, a discretionary decision may be set aside only if it was taken without authority [etc.] "There will be especial caution in reviewing a decision not to confirm the appointment of a probationer in the light of the material criteria. "Where the reason for refusal of confirmation is, as in the present case, unsatisfactory performance the Tribunal will not replace with its own the organisation's assessment of the official's fitness."
Keywords:
appointment; discretion; judicial review; probationary period; termination of employment; unsatisfactory service;
Consideration 18
Extract:
"The purpose of probation is [...] to determine whether the official is capable of performing satisfactorily 'assignments of a kind and degree of difficulty' that correspond to those he was recruited for." The complainant has failed to show that "the assignments she may have been given were in a different area of work or were of greater complexity and difficulty than those she was appointed to perform".
Keywords:
assignment; difference; lack of evidence; post description; probationary period; purpose;
