Judgment 1052
69th Session, 1990
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
"The case law is that a decision not to renew a fixed-term appointment, being discretionary, may be set aside only if it was taken without authority, or in breach of a rule of form or of procedure, [etc]. Although such criteria hold good for the review of all discretionary decisions, the Tribunal will exercise especial caution in reviewing a decision not to confirm the appointment of someone who is still on probation; else probation would fail to serve its purpose as a period of trial. In the case of a probationer the administration must indeed be allowed the widest measure of discretion, and its decision will stand unless the flaw was particularly serious or glaring."
Keywords:
contract; discretion; fixed-term; judicial review; non-renewal of contract; probationary period; termination of employment;
Consideration 5
Extract:
The complainant objects to the non-renewal of his appointment after probation. He alleges breach of his right to a hearing. "The plea is unsound because there was no element of disciplinary sanction in the decision. What the administration did was to make an assessment of the complainant's performance and it was under no duty to enter into any dialogue with him on the subject."
Keywords:
contract; fixed-term; non-renewal of contract; organisation's duties; probationary period; right to reply; termination of employment;
Judgment 1017
69th Session, 1990
International Fund for Agricultural Development
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary
Extract:
Paragraph 3(v) of an IFAD Administrative Instruction on probation under fixed-term appointments reads: "Where it is deemed by the head of department that the staff member's performance is less than satisfactory, he/she will be immediately informed by the head of department that a decision from the President will be sought to terminate his/her services by letting the period of probation lapse." The President's decision to terminate the complainant's appointment at the end of the extended period of probation was flawed by non-compliance with this requirement. because the decision was in breach of the procedural rule, the Tribunal will set it aside and award the complainant substantial compensation for the improper termination of her contract and for moral damages.
Keywords:
duty to inform; flaw; moral injury; probationary period; procedural flaw; termination of employment; unsatisfactory service;
Judgment 987
68th Session, 1990
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 2
Extract:
"The reason given for terminating the complainant's appointment [before the expiry of the probation period] was his unsatisfactory performance and termination on such grounds may be deemed to be action in the organization's interests. The Director-General having wide discretion in the matter, the Tribunal will quash the decision only if it was taken without authority, [etc]".
Keywords:
discretion; judicial review; organisation's interest; probationary period; termination of employment; unsatisfactory service;
Consideraton 5
Extract:
"In support of its contention that there was no breach of his right to a hearing, the FAO cites earlier facts which it submits show that the complainant knew full well that his position was, to say the least, uncertain. Though there are no special rules on the subject and the procedure will depend on the circumstances of each case, the organization has a duty to show that the staff member cannot reasonably have failed to realise he was under threat of termination."
Keywords:
burden of proof; duty to inform; evidence; formal requirements; organisation; probationary period; right to reply; termination of employment;
Consideration 3
Extract:
"The right to a hearing, which is a general principle of law, means that the organization may not terminate a staff member unless it has already informed him of its intention and of the grounds for termination. Such information must be given before the notification of the termination and not at the same time".
Keywords:
date; duty to inform; flaw; probationary period; right to reply; termination of employment;
Judgment 916
65th Session, 1988
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 2
Extract:
"In the case of dismissal of a probationer, the administration should be allowed the widest measure of discretion and the decision will be quashed only if the mistake or illegality was especially serious or glaring."
Keywords:
discretion; judicial review; probationary period; termination of employment;
Judgment 890
64th Session, 1988
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
"The Tribunal may review the lawfulness of a decision by the appointing authority to extend probation. But because of the nature of the decision the Tribunal will, short of finding a formal or procedural flaw - which it does not in this case - exercise only limited review. [In such matters] the competent authority [is] allowed wide discretion".
Keywords:
competence of tribunal; discretion; extension of contract; judicial review; probationary period;
Consideration 3
Extract:
The complainant's appointment was confirmed only after an extension of his probation. Because he was not notified in time of the decision to extend the probationary period, the complainant seeks to have it set aside. "Where it finds a formal flaw, the Tribunal will determine whether it taints the essence of the decision. [...] Late communication therefore will not make the decision unlawful unless the probationer suffers injury. The complainant did not."
Keywords:
administrative delay; date; extension of contract; flaw; formal flaw; injury; lack of injury; probation report; probationary period; right to reply;
Judgment 736
58th Session, 1986
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3
Extract:
"The substantial claim is for wrongful dismissal. The complainant was dismissed under Article 13(2) of the Service Regulations as a consequence of two adverse probation reports. If the reports are correct and fair, they afford adequate grounds for the termination of his employment, which is a matter for the President's discretion."
Reference(s)
Organization rules reference: ARTICLE 13.2 OF THE EPO SERVICE REGULATIONS
Keywords:
discretion; judicial review; probation report; probationary period; termination of employment; unsatisfactory service;
Judgment 687
57th Session, 1985
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 2
Extract:
"Although the Tribunal may review the lawfulness of the dismissal, the nature of the decision is such that its power of review, where it finds no formal or procedural flaw, is limited. It will set the decision aside only if there was a mistake of law [...]. In a case of dismissal of a probationer the administration should be allowed the widest measure of authority, and the decision will be quashed only if the mistake or the illegality is especially serious or glaring."
Keywords:
discretion; judicial review; probationary period; termination of employment;
Consideration 9
Extract:
The complainant was dismissed for reasons of unsatisfactory performance after a six-month extended period of probation even though his work showed improvement during the extension. It does not "matter that the complainant experienced difficulties in the first year of probation. In agreeing to extend the probation the President acknowledged that there might be improvement, and indeed there was. It was a serious abuse of discretion for him to overlook those facts unless the dossier contains evidence produced after the end of the normal probation period."
Keywords:
disregard of essential fact; extension of contract; probationary period; satisfactory service; termination of employment; unsatisfactory service;
Summary
Extract:
Although the complainant's performance showed improvement by the end of an extended period of probation, the organisation dismissed him. The Tribunal holds that the extension of probation gave him reason to believe that if his work was found satisfactory he would get appointed. The President drew clearly mistaken conclusions from the evidence. His decision is set aside and the complainant is referred back to the organisation for determination of his rights on reinstatement in its employ as from the date of his dismissal.
Keywords:
extension of contract; legitimate expectation; mistaken conclusion; probationary period; reconstruction of career; reinstatement; satisfactory service; termination of employment;
Consideration 1
Extract:
"Implicit in [Article 13 of the EPO Service Regulations] and in the general principles which govern the international civil service is the notion that the purpose of probation is to find out whether the official is capable of a satisfactory career in the organisation. The competent authority will determine on the evidence before it, and possibly after extension of the probation, whether to dismiss the official or to confirm his appointment."
Reference(s)
Organization rules reference: ARTICLE 13 EPO SERVICE REGULATIONS
Keywords:
international civil service principles; probationary period; purpose; qualifications; staff regulations and rules;
Judgment 503
48th Session, 1982
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary
Extract:
The complainant, a dutyman, was dismissed at the end of the probationary period. The director took the view that there was personal incompatibility: there was no mistake of law. But there is no evidence that personal incompatibility made the team's work impossible. As the complainant has not asked for reinstatement, he shall receive compensation of 4,000 Deutschmarks with interest at the rate of 10 per cent from the date on which the complaint was filed.
Keywords:
material damages; mistaken conclusion; probationary period; termination of employment; working relations;
Consideration 1
Extract:
"Under [the applicable rule] and the general principles of international public service the purpose of probation is to discover whether the official has the qualities which warrant keeping him on the staff. It is for the President to decide, in the light of the evidence before him, whether to dismiss the official or to grant him a permanent appointment."
Keywords:
discretion; international civil service principles; probationary period; purpose; termination of employment;
Consideration 2
Extract:
"The Tribunal is competent to review the lawfulness of a decision by the appointing authority to terminate the probation period. Because of the nature of the decision, however, the Tribunal may merely consider whether - apart from any formal or procedural irregularities - the decision should be quashed because of an error of law or of fact or because essential facts were overlooked or clearly mistaken conclusions drawn from the evidence, or because there was abuse of authority."
Keywords:
discretion; judicial review; probationary period; termination of employment;
Judgment 455
46th Session, 1981
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
The complainant had a fixed-term appointment of two years, including one year's probation. The probationary period was extended with an indication that without substantial improvement the appointment would be terminated. His contract was terminated under a provision "that the Director-General may at any time terminate the appointment of a staff member who is serving a probationary period if in his opinion it would be in the interests of the organization to do so. [...] Where, as in this case, there is ample evidence to support the conclusion that the complainant's work was unsatisfactory [...] it is not open to the Tribunal to reassess the evidence".
Keywords:
discretion; judicial review; organisation's interest; probationary period; termination of employment; unsatisfactory service;
Judgment 453
46th Session, 1981
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"The grounds on which the organization supports the Director-General's decision [to terminate the complainant at the end of the probation period] are not in the opinion of the Tribunal above criticism." Some of the evidence is not in the complainant's favour but "it is not the duty of the Tribunal to form its own judgment and substitute it for that of the Director-General. It is therefore sufficient to say that the Tribunal is not persuaded that the Director-General's conclusion [...] was clearly mistaken."
Keywords:
grounds; judicial review; probationary period; termination of employment;
Considerations 5-6
Extract:
In the opinion of the Tribunal there is enough evidence to show that the complainant was a man with whom it was difficult, and perhaps impossible, to work. Was there a reasonable likelihood that this defect might have been cured by remonstrance and warning ? The Director-General concluded that there was not. The Tribunal is not persuaded that the Director-General's conclusion that the complainant was unsuited for international service was clearly mistaken.
Keywords:
conduct; fitness for international civil service; judicial review; probationary period; termination of employment; working relations;
Judgment 445
46th Session, 1981
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
The complainant maintains that the fact of his having begun the probationary period at the beginning of his consultancy contract conferred on him the right to participation in the pension fund. But the probationary period and pensionable service do not necessarily coincide. The complainant was treated as a probationer from the material date because a provision of the Staff Rules stipulated that service prior to appointment could be credited towards completion of probation. The provision does not rule out application of the rule disqualifying a consultant for participation in the fund.
Keywords:
contract; external collaborator; participation; period; probationary period; right; unjspf; validation of service;
Judgment 440
45th Session, 1980
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 1
Extract:
The complainant was appointed for two years, with the first 12 months as a probationary period. at the end of this period, his contract was terminated in accordance with the statutory provisions which grant a wide measure of discretion to the bodies responsible for their application. The Tribunal's power of review is limited. In applying the criteria which govern its review, the Tribunal "will exercise special caution in reviewing a decision to dismiss a probationer. Otherwise probation would not serve its purpose as a trial period."
Keywords:
discretion; judicial review; probationary period; termination of employment;
Consideration 4
Extract:
The complainant was appointed on 25 June for two years; the first 12 months were probationary. On 20 June of the following year he was informed that his appointment would be terminated on 24 July. The complainant contends that there was no reason to extend the probation period just in order to respect the requirement of one month's notice. The plea fails: the measure in question was not in breach of any provision of the Staff Rules and it was to the complainant's advantage, who in any case was not bound to accept it.
Keywords:
extension of contract; notice; period; probationary period; termination of employment;
Judgment 396
43rd Session, 1980
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 1
Extract:
"It is the Director-General who defines the interests of the organization, referred to in the regulation [concerning the termination of a probationer's appointment], and so he enjoys discretionary authority."
Keywords:
discretion; organisation's interest; probationary period; termination of employment;
Consideration 3
Extract:
The complainant had been appointed as special assistant to the Director-General as a result of a long-standing friendship between them. After a period of collaboration, the Director-General came to distrust the complainant. "Thus the complainant was no longer able to give the [organization] the service it expected of him." The Tribunal must conclude "that in terminating the complainant's appointment the Director-General acted in the organization's interest".
Keywords:
organisation's interest; probationary period; termination of employment; working relations;
Consideration 2
Extract:
The complainant contends that the decision to terminate his appointment was a covert disciplinary measure taken in disregard of the prescribed procedure: he alleges abuse of authority and procedural irregularity. "There is no document in the dossier which makes or even implies any charge of unsatisfactory conduct. [...] The shortcomings imputed to [the complainant] bear no taint of misconduct such as would have warranted disciplinary action."
Keywords:
hidden disciplinary measure; lack of evidence; probationary period; termination of employment;
Consideration 3
Extract:
"Misunderstandings between a probationer and his supervisor do not necessarily justify instant dismissal. As a rule, before a staff member is dismissed thought should be given to transferring him to some other post on trial, especially if he is junior in rank."
Keywords:
probationary period; termination of employment; transfer; working relations;
Judgment 389
43rd Session, 1980
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4
Extract:
"it is immaterial that when the [organization] appointed the complainant it was or ought to have been aware of his lack of proficiency in french. the fact that it put him on one year's probation shows that it did not regard itself as bound by any opinion it formed or may have formed at the time when it concluded the contract."
Keywords:
knowledge of languages; probationary period; purpose; qualifications;
Consideration 5
Extract:
"Since the complainant failed to come up to the [organization's] expectations during the probationary period, he had no right to ask for a transfer to another post." The refusal to assign him elsewhere was correct. Insofar as that decision was taken on the grounds of his unsatisfactory performance it is warranted for a reason of fact which the Tribunal will not question. "The [organization] was not bound to find alternative employment for a staff member whose appointment was correctly terminated during the probationary period."
Keywords:
organisation's duties; probationary period; termination of employment; unsatisfactory service;
Consideration 3
Extract:
On several occasions the complainant was criticised for his inability to carry out his duties [too academic, lack of practical sense, insufficient knowledge of language of communication]. His transfer was requested. "Since those criticisms were made by the complainant's immediate supervisors [...] they demanded attention. [...] It was open to the Director-General, without exceeding or abusing his discretionary authority, to conclude that it would not be in the [organization's] interests to continue to employ the complainant."
Keywords:
discretion; knowledge of languages; organisation's interest; probationary period; qualifications; termination of employment; unsatisfactory service;
Judgment 334
40th Session, 1978
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
The complainant's post was abolished and for a trial period he was assigned other duties. The Secretary-General was bound to take account of the reports on his performance in the various posts he held. More or less severe criticisms were made of him. In view of the evidence before the Tribunal, the Secretary-General may not be said to have drawn clearly mistaken conclusions therefrom, which warranted the termination of his appointment.
Reference(s)
Organization rules reference: SECTION 9.1 ITU STAFF REGULATIONS AND STAFF RULES
Keywords:
abolition of post; judicial review; mistaken conclusion; probationary period; qualifications; reassignment; termination of employment; unsatisfactory service;
Consideration 4
Extract:
The complainant argues that as a permanent official who had lost his post he was entitled to be appointed to a suitable vacant post without having to take a test. The applicable regulation provides for the grant of priority subject to two conditions: the existence of a suitable vacant post and the staff member's capacity to give useful service in that post. "To determine whether the two conditions are met it may sometimes be necessary to test the staff member whose post has been abolished." There was no mistake of law.
Reference(s)
Organization rules reference: SECTION 9.1 ITU STAFF REGULATIONS AND STAFF RULES
Keywords:
abolition of post; condition; contract; permanent appointment; priority; probationary period; qualifications; reassignment; termination of employment; vacancy;
Judgment 320
39th Session, 1977
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 18
Extract:
The Tribunal "does not invariably order [...] reinstatement [...] since it may present practical difficulties. In the present case [...] the complainant's long and excellent record of service to the [organization], enhanced by his conduct in [...] trying circumstances [...] and by the clarity and moderation of his submission to the Tribunal [...] have shown him to be an officer whom the organization should be sorry to lose."
Keywords:
consequence; probationary period; reinstatement; termination of employment;
Consideration 17
Extract:
"In reaching the decision that the complainant's performance was unsatisfactory, the Director-General and/or the officials whose conclusions he accepted, relied exclusively on the opinion of [the first level supervisor]. They disregarded the factors that made this opinion unreliable. [...] They disregarded the fact that the conditions under which the complainant was working were not in accordance with his post description." Lastly, they drew false conclusions from the first level supervisor's report. The decision of the Director-General must therefore be set aside.
Keywords:
mistaken conclusion; post description; probation report; probationary period; termination of employment; unsatisfactory service;
Consideration 12
Extract:
"A decision taken by the Director-General, either during or at the end of the probation period, not to confirm the staff member's appointment is one which falls within his discretion and accordingly the Tribunal will interfere with it only on strictly limited grounds [...]."
Keywords:
discretion; judicial review; probationary period;
Considerations 12, 13 and 17
Extract:
The complainant was denied confirmation of his appointment for unsatisfactory service. The Regional Director had nothing to say on the matter. Had he examined the evidence, he would have observed that the performance appraisals were of questionable value. Neither the evaluations of the complainant's first level supervisor (which diverged inexplicably from earlier reports), nor those of the chief of department (which merely echoed the supervisor's views) afforded a basis for the decision. As a result the Director General's decision must be quashed.
Keywords:
different appraisals; flaw; probation report; probationary period; reinstatement; satisfactory service; termination of employment; unsatisfactory service; work appraisal;
Judgment 318
39th Session, 1977
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations
Extract:
Under the applicable provision "and the general principles of international public service, the provisional nature of his position denies a probationer the safeguards enjoyed by an established official or by the holder of a fixed-term appointment or of one without limit of time [...]. The Director-General may dismiss him if satisfied that he does not have the right qualifications."
Keywords:
discretion; international civil service principles; probationary period; safeguard; termination of employment;
Considerations
Extract:
"The main grounds for the impugned decision are that the complainant, who would brook no challenge to his views, proved unable to obey his supervisor's instructions and adapt to the methods of the organization. It is clear from the dossier that those grounds are factually correct and are not tainted with any of the flaws [...] which would entitle the Tribunal to interfere."
Keywords:
insubordination; judicial review; probationary period; termination of employment; working relations;
Considerations
Extract:
"[S]ince the purpose of probation is to find out whether the probationer is suited for service and should have his appointment confirmed, the Director-General may dismiss him if satisfied that he does not have the right qualifications."
Keywords:
probationary period; purpose; qualifications; termination of employment; unsatisfactory service;
Judgment 226
32nd Session, 1974
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations
Extract:
"Although the dossier as supplemented by the report on the inquiry reveals obvious animosity towards the complainant on the part of her immediate supervisor and the criticisms of her appear fairly mild, especially since she was a beginner, and cast no doubt whatever on her professional competence, it does not appear from the dossier that the impugned decision with regard to a probationer was tainted with any of the irregularities which entitle the Tribunal to interfere."
Reference(s)
ILOAT Judgment(s): 194
Keywords:
bias; flaw; judicial review; probationary period; satisfactory service; supervisor;
Considerations
Extract:
"In complaints against a decision of the Director-General to terminate a staff member's probation or not to confirm his appointment, the Administrative Tribunal may interfere with that decision only if it was taken without authority [...]."
Reference(s)
ILOAT Judgment(s): 194
Keywords:
discretion; judicial review; probationary period; refusal; termination of employment;
Considerations
Extract:
"A staff member on probation may ordinarily expect to receive an appointment of indeterminate duration at the end of the probation period [...] A decision taken by the Director-General, either during or at the end of the probation period, not to confirm the staff member's appointment is one which falls within his discretion."
Reference(s)
ILOAT Judgment(s): 194
Keywords:
discretion; probationary period;
Considerations
Extract:
After the period of probation, the complainant was dismissed. "As to the claim for compensation, on which judgment was reserved in Judgment No. 194, the Tribunal considers that the sum [...] offered by the Director-General in his letter [...] is sufficient and therefore decides to award that sum to the complainant."
Reference(s)
ILOAT Judgment(s): 194
Keywords:
acceptance; amount; offer; organisation; probationary period; terminal entitlements; termination of employment; tribunal;
Considerations
Extract:
By Judgment No. 194, the Administrative Tribunal quashed as being based on insufficient grounds the decision not to confirm the complainant's appointment. In execution of that judgment an ad hoc committee was set up to examine the case. In the light of the very full report of that committee, "the Director-General took a considered decision in full knowledge of the facts. The organization has thus corrected the procedural irregularity which led to the quashing of the decision".
Reference(s)
ILOAT Judgment(s): 194
Keywords:
case sent back to organisation; confirmatory decision; duty to substantiate decision; execution of judgment; flaw; formal flaw; judgment of the tribunal; probationary period; termination of employment;
Judgment 197
29th Session, 1972
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations
Extract:
"There is no statutory provision or general rule of law that makes it mandatory for the organization to retain a staff member on probation in its service for at least a year if, before the year has expired, the competent authority has come to the conclusion that the staff member concerned is unsuitable for the post to which he was assigned."
Keywords:
organisation's duties; period; probationary period; termination of employment;
Considerations
Extract:
"[I]t is within the Director-General's discretion on receiving an appeal [...] to decide whether, in order to establish the facts, it is necessary to give a personal hearing to the person concerned or whether the arguments and documents supplied by him and the information given by the chief of his unit are sufficient to allow a decision to be taken."
Keywords:
discretion; probationary period; right to reply; work appraisal;
Considerations
Extract:
Reports on each staff member must be made in the first place by his immediate supervisor, who is the best qualified to make an appraisal. This principle cannot be applied "in some units which, because of their nature, activities or the very form of their organization, a small number of officials are associated in a specific common task. It may be conducive to the efficiency of such units for the chief to report directly on all the staff members with whom he is in close and continuous collaboration in the exercise of their duties."
Keywords:
competence; probation report; probationary period; rating; supervisor; work appraisal;
Considerations
Extract:
The Director-General "took the view that [the complainant, a probationer,] did not have the necessary qualifications for the post to which he was assigned [...] [His] decision was not tainted by illegality or based on incorrect facts [...], he did not fail to take account of essential facts, and did not draw from the evidence conclusions that are clearly false. The Tribunal's power to review the substance of this case is limited to the foregoing four points, and it cannot substitute its own judgment for that of the head of the organization."
Keywords:
discretion; judicial review; probationary period; qualifications; work appraisal;
Judgment 194
29th Session, 1972
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations
Extract:
The complainant's plea that the impugned decision should be quashed as being based on insufficient grounds succeeds. "[I]t is [...] for the Director-General to reopen the case and to consider, by such means as he may deem appropriate and after giving a hearing to [the complainant], whether the appraisal made by her immediate supervisor was well-founded and whether the non-confirmation of her appointment could legitimately be based on the provisions" cited.
Keywords:
case sent back to organisation; decision quashed; duty to substantiate decision; grounds; judicial review; probationary period; termination of employment; unsatisfactory service;
