Judgment No. 3853
1. The OPCW shall pay the complainant damages in the amount of 40,000 euros.
2. It shall also pay the complainant 6,000 euros in costs.
3. All other claims are dismissed.
The complainant challenges the decision to terminate his contract on the grounds of unsatisfactory service.
termination; unsatisfactory service
[A] distinction can be drawn between an allegation of unsatisfactory service and an allegation of misconduct (see, for example, Judgments 247, consideration 13, 1163, consideration 5, and 1208, consideration 2). An allegation of unsatisfactory conduct must involve disciplinary procedures but this is not so if the allegation is simply one of unsatisfactory service (see, for example, Judgments 1501, consideration 3, and 1724, consideration 14).
ILOAT Judgment(s): 247, 1163, 1208, 1501, 1724
misconduct; unsatisfactory service
[T]he complainant bears the burden of establishing bad faith (see, for example, Judgments 1776, consideration 24, 3407, consideration 15, and 3738, consideration 9) [...].
ILOAT Judgment(s): 1776, 3407, 3738
burden of proof; bad faith
The Tribunal rejects the complainant’s argument that he was entitled to a performance appraisal concerning his service. Plainly that was not appropriate in the circumstances where the issue was not service at a less than satisfactory level but rather no service because of absence.
[I]f the O[rganisation] intended to terminate his contract for reasons of unsatisfactory service, [the complainant] should have been informed either through a negative performance appraisal report or precise warnings that his service had to improve (see, for example, Judgments 1872, consideration 9, 3224, consideration 7, and 3252, consideration 8). This is a manifestation of the duty of an organisation to act in good faith towards its staff (see, for example, Judgment 3613, consideration 27).
ILOAT Judgment(s): 1872, 3224, 3252, 3613
performance report; duty of care
A staff member abandons her or his post if she or he shows an intention not to return (see Judgment 392, consideration 4).
ILOAT Judgment(s): 392
abandonment of post