Judgment No. 3911
1. The Director-General’s decision of 10 December 2015 and his earlier decision of 3 August 2015 to terminate the complainant’s contract are set aside.
2. The ITER Organization shall pay the complainant compensation as detailed in consideration 18 of the judgment, as material damages.
3. The ITER Organization shall pay the complainant moral damages in the sum of 20,000 euros.
4. The ITER Organization shall pay the complainant costs in the amount of 5,000 euros.
5. All other claims are dismissed.
The complainant challenges the decision to terminate his appointment for unsatisfactory performance.
complaint allowed; decision quashed; termination of employment; unsatisfactory service
Precedent has it that in terminating a staff member’s employment, an international organization must follow its own rules. Accordingly, the Tribunal has stated that it would set aside an adverse decision, such as the one in the present case which terminated the complainant’s employment, where the decision was made on the basis of an unsatisfactory rating in an appraisal report for which the applicable procedural rules were not followed (see Judgment 3239, consideration 18).
ILOAT Judgment(s): 3239
termination of employment; unsatisfactory service
Precedent [...] has it that where a staff member fails to challenge an appraisal report by lodging an internal appeal against it within the stipulated time, the report becomes final and may not be called into question, even with regard to its lawfulness (see, for example, Judgments 3059, under 7, and 3666, under 7).
ILOAT Judgment(s): 3059, 3666
time bar; performance report
In consideration 8 [of Judgment 1484], the Tribunal [...] reiterated the principle that an organization may not take action which affects a staff member’s status before she or he is heard. It stated as follows:
“Besides, according to general precepts of administrative law and the law of the international civil service an organization may not unilaterally take action that affects a staff member’s status before letting him have his say: Judgment 1082 […] affirmed that rule in 18: ‘By virtue of their contractual relationship and the trust that therefore prevails between them, an organisation owes its employee a duty to declare its intention of dismissing him and to let him plead his case.’
The same principle was set out in Judgments 1212 [...] under 2 to 4 and 1395 [...] under 6.”
ILOAT Judgment(s): 1082, 1212, 1395, 1484
general principle; right to reply; termination of employment
[W]hile the right to a prior written warning may be conferred by an organization’s internal rules, the Tribunal has also stated that it may arise from a general principle of law based on the organization’s duty of good faith and duty of care to its staff members.
general principle; right to reply; unsatisfactory service
It is noteworthy that the decision in Judgment 2529, consideration 15, was made in reliance on the following statement of principle in Judgment 2414, consideration 23:
“15. The Tribunal’s case law is voluminous and consistent to the effect 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 Judgment 1212.) More recently, in Judgment 2414 the Tribunal held that:
‘23. [...] 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. Moreover, he or she is entitled to have objectives set in advance so that he or she will know the yardstick by which future performance will be assessed. These are fundamental aspects of the duty of an international organisation to act in good faith towards its staff members and to respect their dignity. That is why it was said in Judgment 2170 that an organisation must ‘conduct its affairs in a way that allows its employees to rely on the fact that [its rules] will be followed’.”
ILOAT Judgment(s): 1212, 2170, 2414, 2529
unsatisfactory service; warning