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Judgment No. 1127

Decision

THE COMPLAINT AND THE ORGANISATION'S COUNTERCLAIM ARE DISMISSED.

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

lack of injury; formal requirements; period; probation; extension; probation report; termination; unsatisfactory service

Consideration 8

Extract:

The complainant suggests that the Reports Committee which recommended against confirming her appointment following probation was biased. "The burden is on the complainant to show that the members of the Committee duly appointed by the Director General were not impartial, and she has failed to offer any evidence to suggest that they were not."

Keywords

complainant; advisory body; composition; evidence; burden of proof; discretion; executive head; bias

Consideration 8

Extract:

"The Tribunal will not ordinarily question the competence and qualifications of those whom the Director General appoints in the exercise of his discretion to the Reports Committee, provided that the rules are complied with and the members' independence and impartiality are not in doubt."

Keywords

procedure; advisory body; composition; competence; judicial review; discretion; executive head; bias

Consideration 10

Extract:

The Reports Committee, which was called on to advise on whether the complainant's appointment should be confirmed, is free, as is the Tribunal, to turn down a complainant's request for hearings in the absence of any procedural rule to the contrary. "There was no breach of due process: provided that both parties were given the opportunity to state their views - and they were - the Reports Committee was free to conduct its inquiry as it thought fit."

Keywords

procedure; advisory body; oral proceedings; adversarial proceedings; due process

Consideration 14

Extract:

"There is no requirement in the Rules that [the report of an advisory body] should be communicated to the official before the Director General takes his decision. In any event the complainant has had the opportunity of addressing the contents of the report in her pleadings to the Tribunal."

Keywords

lack of injury; advisory body; report; tribunal; disclosure of evidence; right to reply; advisory opinion

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

lack of evidence; assignment; post description; probation; difference; purpose

Consideration 20

Extract:

"The doctrine of estoppel is that someone who makes some statement or representation of fact that causes another to act to his detriment by relying on the truth of it may not later deny it even though it turns out to be wrong." The complainant's reliance on estoppel is mistaken.

Keywords

good faith; definition

Considerations 21 and 22

Extract:

The complainant submits that the custom in the European Communities is to transmit an interim report to the probationer in mid-probation. "The answer to that is that, being an independent organisation, Eurocontrol is not bound by the customs of any other, even one that has rules similar to its own. Besides, that an interim report may be useful does not make it compulsory."

Keywords

applicable law; practice; rule of another organisation; probation report

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; probation; termination; unsatisfactory service; judicial review; discretion

Consideration 32

Extract:

"The Tribunal will not entertain the organisation's counterclaim to an award of costs against the complainant for abuse of process."

Keywords

tribunal; vexatious complaint; costs; counterclaim; refusal



 
Last updated: 07.11.2018 ^ top