Judgment No. 3948
1. The impugned decision of 21 September 2015, as well as the original decision of 26 September 2014 not to renew the complainant’s contract and that of 24 December 2014, which confirmed the original decision, are set aside.
2. IOM shall pay the complainant material damages in the amount of 50,000 United States dollars.
3. It shall pay the complainant moral damages in the amount of 30,000 United States dollars.
4. It shall also pay the complainant costs in the amount of 6,000 United States dollars.
5. All other claims are dismissed.
The complainant impugns the decision not to renew her fixed-term contract.
complaint allowed; decision quashed; fixed-term; non-renewal of contract
The basic applicable principles where a decision not to renew a contract is challenged have been relevantly stated, for example, in Judgment 3586, considerations 6 and 10, as follows:
“6. It bears recalling at this juncture that the Tribunal’s scope of review in a case such as this is limited. Firm and consistent precedent has it that an organization enjoys wide discretion in deciding whether or not to extend a fixed-term appointment. The exercise of such discretion is subject to limited review because the Tribunal respects an organization’s freedom to determine its own requirements and the career prospects of staff (see, for example, Judgment 1349, under 11). The Tribunal will not substitute its own assessment for that of the organization. A decision in the exercise of this discretion may only be quashed or set aside for unlawfulness or illegality in the sense that it was taken in breach of a rule of form or procedure; or if it is based on an error of fact or of law, if some essential fact was overlooked; or if there was an abuse or misuse of authority; or if clearly mistaken conclusions were drawn from the evidence (see, for example, Judgments 3299, under 6, 2861, under 83, and 2850, under 6).
10. It is firm principle that the reason not to extend a fixed-term contract must be a valid one and not one that was given to conveniently get rid of a staff member (see, for example, Judgment 1154, under 4).”
Jugement(s) TAOIT: 3586
general principle; fixed-term; non-renewal of contract
[T]he plea of abuse of authority in relation to the non-renewal decision is one of the generic grounds of challenge to a discretionary administrative decision. Thus the following was stated in Judgment 3172, consideration 16:
“A decision taken for an improper purpose is an abuse of authority. It follows that when a complainant challenges a discretionary decision, he or she by necessary implication also challenges the validity of the reasons underpinning that decision. In this respect, the Tribunal may examine the circumstances surrounding the abolition of the post to determine whether the impugned decision was tainted by abuse of authority.”
Jugement(s) TAOIT: 3172
abolition of post; misuse of authority
In the normal course of things, this case would be remitted to IOM for a decision to be issued in accordance with the foregoing guidance. This will not however be done in the present case given the time which has already elapsed, the fulsome nature of the submissions, including submissions on the merits, the evidence produced by the parties, and the fact that vitiating errors are obvious in the impugned decision.
case sent back to organisation
The Tribunal [...] considers that IOM should have disclosed to the JARB the documents that it had in its possession, as they could have assisted it to determine whether the reason given for not renewing the complainant’s contract, budgetary constraints, was a valid and objective reason. The documents, appropriately redacted, should also have been disclosed to the complainant. Having not disclosed them, IOM breached due process as well as its duty of care to the complainant.
The rationale for the latter determination can be gleaned from the statements in Judgment 3586, considerations 16 to 20, which may be summarized as follows: in keeping with consistent case law of the Tribunal, a staff member of an international organization must, as a general rule, have access to all evidence on which an authority bases or intends to base its decision against her or him. In normal circumstances such evidence, which is peculiarly in the organization’s control, cannot be withheld on grounds of confidentiality unless there is some special case in which a higher interest stands in the way of the disclosure of certain documents. However, such disclosure may not be refused merely in order to strengthen the position of the Administration or one of its officers. The principle of equality of arms must be observed by ensuring that all parties to a case are provided with all of the materials used by an internal adjudicating body, the JARB in this case. The failure to disclose them constitutes a breach of due process, as it would render its examination of the case incomplete and prevent it from properly considering the facts. This would not only violate due process but also the organization’s duty of care causing the impugned decision to be set aside.
confidential evidence; adversarial proceedings; duty of care