Judgment No. 4071
1. The impugned decision of 14 October 2015 and the separation agreements signed by the complainants are set aside.
2. The Global Fund shall pay each complainant the equivalent of three months’ gross salary in material damages.
3. It shall pay each complainant 50,000 Swiss francs in moral damages.
4. It shall also pay each complainant 5,000 Swiss francs in costs.
5. All other claims are dismissed.
The complainants challenge the lawfulness of the mutually agreed separation agreement which they signed.
agreed termination; lack of consent; duress; separation agreement
The defendant raises an objection to the receivability of the complaints, namely that the complainants, by signing the separation agreements, waived their right to challenge either the validity or the content thereof. However, since the complainants contend that they signed these agreements as a result of misrepresentation and pressure which vitiated their consent, this question of receivability is inseparable from the merits of the case (see Judgment 3423, consideration 13). As is also conceded by the defendant, the decision on the objection to receivability depends on the legal validity of the separation agreements, and this makes it necessary to consider the complainants’ pleas on the merits (see, in this regard, Judgments 3610, consideration 6, and 3750, consideration 5).
ILOAT Judgment(s): 3423, 3610, 3750
receivability of the complaint; waiver of right of appeal; agreed termination; lack of consent; duress; separation agreement
As regards the lack of both transparency and information, the Tribunal recalls that, according to its case law, the principle of good faith and the concomitant duty of care demand that international organizations treat their staff with due consideration in order to avoid causing them undue injury; an employer must consequently inform officials in advance of any action that may imperil their rights or harm their rightful interests (see Judgments 2116, consideration 5, 2768, consideration 4, 3024, consideration 12, and 3861, consideration 9).
In the present case, the organization disregarded the principle of good faith and its duty of care. Indeed, as regards their past performance, the complainants were unaware, at the time of the meetings in question, of the outcome of the calibration of their evaluations referred to by those conducting the meeting. Nor were the complainants informed of the competencies that had supposedly been evaluated in anticipation of the restructuring of the organization or of the new specific requirements of their posts, which, according to the Appeal Board, were not reflected in the job descriptions, or of the new objectives, which, again according to the Board, had not been discussed with them. Unaware of the reasons why the organization considered that they did not meet the requirements in question, the complainants were not in a position to make a fully informed choice between the two proposed alternatives. It follows that their consent was vitiated.
ILOAT Judgment(s): 2116, 2768, 3024, 3861
good faith; duty to inform; lack of consent; duty of care; performance evaluation
[U]nder the Tribunal’s case law, performance appraisals are the only criterion of performance where international civil servants are concerned (see Judgment 2544, consideration 8) and no account may be taken of an ad hoc assessment conducted in parallel to the statutory performance evaluation (see Judgment 3436, consideration 9).
ILOAT Judgment(s): 2544, 3436
work appraisal; performance report; performance evaluation
The Tribunal recognizes that international organizations have the discretion to manage their performance management objectives but highlights that they must do so using the tools they have in the manner in which they are designed (see Judgments 3610, consideration 9, and 3750, consideration 8).
In the present case, the Global Fund sought to use a tool (the performance improvement plan) which is explicitly designed to correct identified underperformance, in order to address an issue of potential future underperformance. The Tribunal finds that this inappropriate use of the PIP constitutes a misuse of authority which rendered the process non-transparent and arbitrary (see Judgments 3610, consideration 9, and 3750, consideration 8).
ILOAT Judgment(s): 3610, 3750
work appraisal; misuse of authority; performance evaluation
Since, under the applicable rules, the participation of the complainants in such a plan, either on account of supposed underperformance in the past or shortcomings in their future role, was not a valid option, it should not have been presented as a possible alternative to the signing of a separation agreement. In proposing this alternative, the Global Fund placed them under undue pressure (see Judgment 3610, consideration 7).
ILOAT Judgment(s): 3610
agreed termination; duress; separation agreement
In the rejoinder, the complainants’ counsel asks the Tribunal to deduct amounts for his benefit from the monetary awards made to the complainants. However, it is not for the Tribunal to concern itself with private arrangements made between complainants and their counsel. This request must therefore be rejected.
competence of tribunal; counsel