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Judgment No. 2646

Decision

The complaint is dismissed.

Consideration 5

Extract:

"[T]he Tribunal recalls that the reason for probation is to enable an organisation to assess the probationer's suitability for a position. For this reason, it has recognised that a high degree of deference ought to be accorded to an organisation's exercise of its discretion regarding decisions concerning probationary matters including the confirmation of appointment, the extensions of a probationary term, and the identification of its own interests and requirements."

Keywords

decision; organisation; post; probation; confirmation of appointment; extension; qualifications; judicial review; discretion; limits; organisation's interest; definition; purpose

Considerations 13 and 14

Extract:

The complainant was dismissed at the end of his probationary period. He states that despite his repeated requests he was never transferred to another directorate. "As to the case law, the complainant relies on Judgment 396 in support of [this] assertion [...]. The issue in that case was whether the head of the Organisation had correctly applied a particular provision of the Staff Regulations authorising him to terminate the appointment of a probationer at any time in the Organisation's interests. The Tribunal stated that '[a]s a rule, before a [probationer] is dismissed thought should be given to transferring him to some other post on trial, especially if he is junior in rank'. It must, however, be noted that this was said in the context of a misunderstanding between the probationer and his supervisor and the Tribunal's observation that such a misunderstanding does not necessarily justify instant dismissal. In the present case, the stated reason for the dismissal was poor performance.
To conclude that in situations of poor performance a staff member on probation will always be entitled to a transfer prior to being dismissed undermines the whole purpose of probationary terms. In some circumstances a transfer may be the proper option, but the circumstances of the present case do not warrant this finding."

Reference(s)

ILOAT Judgment(s): 396

Keywords

grounds; organisation; case law; general principle; organisation's duties; staff regulations and rules; enforcement; provision; transfer; post; probation; termination; unsatisfactory service; supervisor; working relations; discretion; executive head; organisation's interest; purpose; refusal; request by a party; right



 
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