Judgment No. 4072
1. The impugned decision of 14 October 2015 and the separation agreement of 21 March 2012 are set aside.
2. The Global Fund shall pay the complainant the equivalent of three months’ gross salary in material damages.
3. It shall pay him 50,000 Swiss francs in moral damages.
4. It shall also pay him 5,000 Swiss francs in costs.
5. All other claims are dismissed.
The complainant challenges the lawfulness of the mutually agreed separation agreement which he signed.
complaint allowed; decision quashed; agreed termination; lack of consent; duress; separation agreement
The defendant raises an objection to the receivability of the complaint, namely that the complainant, by signing the separation agreement, waived his right to challenge either the validity or the content thereof. However, since the complainant contends that he signed this agreement as a result of misrepresentation and pressure which vitiated his consent, this question of receivability is inseparable from the merits of the case (see Judgment 3424, consideration 12). As is also conceded by the defendant, the decision on the objection to receivability depends on the legal validity of the separation agreement, and this makes it necessary to consider the complainant’s pleas on the merits (see, in this regard, Judgments 3610, consideration 6, and 3750, consideration 5).
ILOAT Judgment(s): 3424, 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 his past performance, the complainant was unaware, at the time of the meetings in question, of the outcome of the calibration of his evaluation referred to by those conducting the meeting. Nor was he informed of the competencies that had supposedly been evaluated in anticipation of the restructuring of the organization or of the new specific requirements of his post, 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 him. Unaware of the reasons why the organization considered that he did not meet the requirements in question, the complainant was not in a position to make a fully informed choice between the two proposed alternatives. It follows that his consent was vitiated.
ILOAT Judgment(s): 2116, 2768, 3024, 3861
good faith; duty to inform; lack of consent; duty of care; 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; abuse of power
Since, under the applicable rules, the participation of the complainant in such a plan, either on account of supposed underperformance in the past or shortcomings in his 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 him under undue pressure (see Judgment 3610, consideration 7).
ILOAT Judgment(s): 3610
agreed termination; duress; separation agreement
In the rejoinder, the complainant’s counsel asks the Tribunal to deduct amounts for his benefit from the monetary awards made to the complainant. 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