Judgment No. 3282
1. The decisions of 27 June and 30 August 2011 are set aside.
2. ESO shall pay the complainant material damages in the amount equivalent to two years’ salary, including all benefits, entitlements and emoluments plus interest at a rate of 5 per cent per annum, less any amounts he has earned in that period.
3. It shall pay him moral damages in the amount of 20,000 euros.
4. It shall also pay him costs in the amount of 5,000 euros.
5. All other claims are dismissed.
The complainant successfully challenged the decision not to renew his contract based on an "overall assessment" that his performance was below the acceptable level.
complaint allowed; material injury; moral injury; decision quashed; breach; contract; non-renewal of contract; flaw; compensation; duty of care
"The guarantee of access to justice is a guarantee of access to a judge, which the complainant has in his ability to bring a complaint before the Tribunal. [...] In this case, Article VI.1.02 of the Staff Rules provides that there is no internal remedy for decisions regarding non-renewal of contract and as such, the complainant has direct access to the Tribunal."
Organization rules reference: Article VI.1.02 of the Staff Rules
internal appeal; competence of tribunal; staff regulations and rules; non-renewal of contract; judicial review; right
Considering reinstatement could raise substantial practical difficulties because of the time that has elapsed since the complainant’s separation from service, the complainant is “entitled to full compensation for the material and moral injury he sustained” (see Judgment 1386, under 26).
ILOAT Judgment(s): 1386
material injury; moral injury; reinstatement; separation from service
As in Judgment 2916, under 4, the Tribunal holds that “an organisation may not in good faith end someone’s appointment for poor performance without first warning him and giving him an opportunity to do better […]. Moreover, it cannot base an adverse decision on a staff member’s unsatisfactory performance if it has not complied with the rules established to evaluate that performance […].” [...] Consistent case law states that “[a] staff member whose service is not considered satisfactory is entitled to be informed in a timely manner as to the unsatisfactory aspects of his or her service so that steps can be taken to remedy the situation” (see Judgment 2414, under 23).
ILOAT Judgment(s): 2414, 2916
work appraisal; performance report; fixed-term; non-renewal of contract; unsatisfactory service