Judgment No. 3666
The complaint is dismissed.
The complainant contests the decision not to promote him in 2012.
promotion; complaint dismissed
The above considerations are enough to dismiss the complaint but, for the sake of clarity, the Tribunal finds it useful to add that the complainant’s claim that the Joint Committee for Disputes (JCD) was incorrect in stating that his performance appraisal report for 2011 could not justify his promotion, is unfounded. Article 45 of the Staff Regulations clearly provides that merit shall be of primary importance in considering eligibility for promotion, and it goes on to specify that the official’s appraisal reports shall be taken into consideration when considering comparative merit. However, the Tribunal notes that the complainant’s performance appraisal report for 2011 does not show that his merit would justify a promotion. Furthermore, the complainant’s criticism towards his 2011 appraisal report cannot be taken into consideration as he did not impugn the appraisal report in accordance with the relevant rules and within the applicable time limits. Therefore the complainant’s 2011 appraisal report is immune from challenge.
decision; time bar; performance report
The complainant [...] raises the issue that Eurocontrol, by failing to implement rules supporting the Memorandum of Understanding, made his promotion impossible and that the JCD’s statement on this issue showed bias in favour of Eurocontrol. In its unanimous opinion, the JCD stated in paragraph 3 that “the Memorandum of Understanding merely state[d] in Article 10 of its Annex that union representatives should not be discriminated against other staff because of their trade union affiliation or activities. Of course, [Eurocontrol] must abide by the principle of equality of treatment and ensure that the activities carried out by trade union representatives do not have any prejudicial effect on their career. They should all have a supervisor and their performance be appraised regularly as requested by the Tribunal [in Judgment 2869], which is the case for [the complainant] since 2008.” The Tribunal considers this statement to be correct. By assigning the complainant to a post in which 50 per cent of his activity was devoted to the tasks listed in his job description (with the remaining 50 per cent devoted to his trade union activities), he was reinserted into the office hierarchy which allowed for periodic performance appraisals by a line manager. This restored the equality of treatment between the complainant and other staff members as requested by the relevant provision of the Memorandum of Understanding and by Judgment 2869.
ILOAT Judgment(s): 2869
equal treatment; staff union activity; staff representative