Judgment No. 4170
1. The decision of the Director-General of UNESCO of 27 November 2015, the decisions of 2 November 2012 and 9 January 2013, and the complainantís performance reports for the 2010-2011 biennium are set aside.
2. UNESCO shall pay the complainant material damages and interest thereon, calculated as indicated in considerations 15 and 16 of the judgment.
3. The Organization shall pay the complainant 10,000 euros in moral damages.
4. It shall also pay her 750 euros in costs.
5. All other claims are dismissed.
The complainant challenges her performance reports for the 2010-2011 biennium and the decisions to defer her within-grade salary increment until 1 February 2012, to withhold that increment on that date and to not renew her fixed-term appointment for unsatisfactory service.
fixed-term; non-renewal of contract; performance evaluation
[T]he allegations which the complainant made against her supervisor [...] were summarised in CAP 403 in the presentation of the partiesí arguments, and the Appeals Board noted that the complainant ďmakes reference to a number of incidents surrounding the drawing up of the impugned [performance] reportĒ. However, the Appeals Board failed to respond to these allegations, perhaps considering the flaws that it had identified sufficient to substantiate its recommendations. The Appeals Board did not therefore ascertain whether the complainantís unfavourable performance rating and the non-renewal of her appointment owed to prejudice or other extraneous factor, as required under paragraph 5(b) of the Boardís Statutes, which was hence breached. Furthermore, that provision merely illustrates the general principles that apply in this matter, regardless of whether they are laid down in any rule or regulation.
bias; performance evaluation
At this stage in its findings, the Tribunal should normally refer the case back to UNESCO for the Appeals Board to re-examine the complainantís appeal. However, given the length of time since the events and for the sake of procedural efficiency, the Tribunal will not do so and will itself assess the lawfulness of the Director-Generalís decision [...].
case sent back to organisation
The Tribunal has consistently held that international organisations have wide discretion in taking decisions concerning staff performance appraisal and whether to renew a fixed-term appointment. Such decisions are therefore subject to only limited review by the Tribunal, which will interfere only if a decision was taken in breach of applicable rules on competence, form or procedure, if it was based on a mistake of fact or of law, if an essential fact was overlooked, if a clearly mistaken conclusion was drawn from the facts, or if there was abuse of authority (see, for example, Judgments 1583, consideration 2, 3039, consideration 7, 4010, consideration 5, and 4062, consideration 6, and the case law cited therein).
ILOAT Judgment(s): 1583, 3039, 4010, 4062
discretion; performance evaluation
The complainant asks to be reinstated at UNESCO. However, it should be noted that the complainant was not dismissed. The complainantís appointment was not terminated; it was not renewed on its expiry. The Tribunal considers that in the present case, it is not appropriate to order the complainantís reinstatement, in view of the time that has passed, the particular circumstances of the case, and the fact that, as has just been stated, the complainant did not hold an indeterminate appointment (see, for example, Judgments 2763, consideration 27, 3299, consideration 28, and 4009, consideration 16).
ILOAT Judgment(s): 2763, 3299, 4009
[T]he complainant has no grounds for claiming the payment of all the emoluments which she would have received until she reached retirement age, as the renewal of her fixed-term appointment would by no means have guaranteed that the Organization would have continued to employ her until the end of her career.
However, in this case, the Tribunal finds that the material injury suffered by the complainant shall be fairly redressed by ordering UNESCO to pay her the equivalent of the salary and allowances of all kinds which she would have received had her contract been renewed for a period of two years starting from 3 January 2013, under the same conditions as previously applied, net of the amount she received in lieu of notice and of any occupational earnings she may have received during that period. The Organization shall also pay her the equivalent of the pension contributions that it would have had to pay during the same period. All these amounts shall bear interest at the rate of 5 per cent per annum as from the date on which they fell due until the date of their payment.
[T]he unlawful nature of the decisions concerning the complainantís unfavourable performance rating and the non-renewal of her appointment caused her substantial moral injury.
Given, in particular, the damage to the complainantís professional reputation caused by the grounds on which her employment with the Organization was terminated, and the lack of care with which, according to the evidence, the Organization at times treated her in this matter, the Tribunal considers it appropriate to award her 10,000 euros in compensation under this head.