Judgment No. 2732
1. The decision of 27 November 2006 terminating the complainant's contract is set aside.
2. The IOM shall pay the complainant material damages in the amount of 15,000 euros.
3. It shall pay her moral damages in the amount of 10,000 euros.
4. It shall also pay her 500 euros in costs.
5. All other claims are dismissed, as is the Organization's counterclaim for damages.
"The Tribunal rejects the complainant's assertion that the Staff Regulations and Staff Rules did not form part of her contract. The complainant's contract stipulated: '[y]our terms of employment, benefits and obligations will be those stated in [the] letter [of appointment], in the Staff Regulations and Staff Rules [...]'. Thus, it is clear that the Staff Regulations and Staff Rules were specifically incorporated by reference into her contract. As to her claim that she did not have access to the Staff Regulations and Staff Rules, the complainant could have requested a copy thereof before signing the contract but did not do so."
complaint allowed; complaint allowed in part; staff regulations and rules; terms of appointment; contract; social benefit; staff member's duties; request by a party
Considerations 16 and 17
"Staff Regulation 9.2(c) states that the Director General may at any time terminate an appointment of a staff member serving a probationary period if, in his opinion, it would be in the interest of the Organization. This provision, however, does not displace the well-established principle 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 Judgments 1212 and 2529). As well, a probationer is entitled to a timely warning so that measures can be taken to remedy the situation (see Judgment 2414).
In the present case, given the nature of the complainant's functions, a period of seven days to demonstrate improvement was clearly inadequate. Accordingly, the decision to terminate her contract must be set aside."
Organization rules reference: IOM Staff Regulation 9.2(c)
ILOAT Judgment(s): 1212, 2414, 2529
complaint allowed; complaint allowed in part; decision; decision quashed; organisation's duties; staff regulations and rules; probation; separation from service; termination; notice; unsatisfactory service; executive head; organisation's interest; right
"Although the decision [to terminate the complainant's appointment during her probationary period] must be set aside, in view of the circumstances it is not clear that, even if she had been given a proper warning and an opportunity to improve, her appointment would have been confirmed. However, as a result of the Organization's actions she lost a valuable opportunity to improve and demonstrate her suitability for the position and to have her contract considered in that light. The loss of that opportunity warrants an award of material damages in the amount of 15,000 euros."
complaint allowed; complaint allowed in part; decision; injury; decision quashed; good faith; organisation's duties; duty to inform; contract; probation; non-renewal of contract; material damages