Judgment No. 4185
The complaint is dismissed.
The complainant, who alleges that he was the victim of harassment, seeks redress for the injury he considers he has suffered.
[A] new claim [...] is irreceivable as it extends the scope of the claims submitted during the internal appeal process (see, for example, Judgment 4066, consideration 4, and the case law cited therein).
Jugement(s) TAOIT: 4066
[M]aking an order that the practice of purchasing the driver uniforms be restored is beyond the competence of the Tribunal (see, for example, Judgment 4038, consideration 19) [...].
Jugement(s) TAOIT: 4038
competence of tribunal; ratione materiae
To address the issue of the limits of the Tribunal’s power of review it is convenient to cite the relevant parts of Judgment 4010, considerations 5 and 8, which read as follows:
“5. [...] The Tribunal recognises that ‘assessment of an employee’s merit during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment’ (see Judgment 3945, consideration 7). The Tribunal will set aside a report only if there is a formal or procedural flaw, a mistake of fact or law, or neglect of some material fact, or misuse of authority or an obviously wrong inference drawn from the evidence (see, for example, Judgments 3842, consideration 7, 3692, consideration 8, 3378, consideration 6, 3006, consideration 7, and 2834, consideration 7).
8. [...] [T]he complainant’s analysis does not reveal any factual errors that might have had a material effect on the ultimate conclusions about his performance. While the analysis reflects the complainant’s view, understandably favourable to him, of how he had performed in relation to those seven activities, it does not reveal an error of the type that would warrant intervention by the Tribunal having regard to the principles discussed in consideration 5 above. The complainant’s supervisor was entitled to form the view he had of the complainant’s performance and it was not flawed by any material factual error. It was a view based on evaluation and assessment of available material. While the complainant disagrees with that evaluation and assessment, it was within the supervisor’s discretionary power to make that evaluation and assessment, and there is no basis established by the complainant for reviewing the exercise of that power and for setting aside the performance appraisal which was, in part, based on it.”
Jugement(s) TAOIT: 2834, 3006, 3378, 3692, 3842, 3945, 4010
Regarding the complainant’s allegation that the documentation provided by HRS to the Reports Committee was incomplete, the Tribunal observes from the submissions that HRS had removed annexes provided by the complainant which contained personal and private third-party information unrelated to the complainant’s performance of his duties, as well as unauthorized copies of official and confidential information. HRS, however, did attach the full list of the documents and offered to provide the documents themselves at the request of the Reports Committee, subject to the explicit authorization of the persons concerned. The Reports Committee agreed with the position of the Chief of HRS not to circulate all the files containing personal and private information as they could not be disclosed without the prior consent of the officials concerned. It noted that “[w]hile it was the official’s right to add his observations to the appraisal as foreseen by the Staff Regulations and procedures, its submission should also respect the Centre’s rules and procedures”. The Tribunal considers that the documents which were not forwarded were irrelevant to the question of the validity of the complainant’s performance appraisal report.
confidential evidence; performance evaluation
The complainant submits that the fact that he was not heard by the Reports Committee vitiates the impugned decision. The Tribunal notes, however, that according to its own rules of procedure, the Reports Committee is under no obligation to conduct hearings. In any event, the complainant submitted full written documentation regarding the review of his performance appraisal report. In its recommendations to the Director of the Centre, the Reports Committee noted that the complainant was invited to be interviewed, but as he was absent on leave it then asked that he submit his observations in writing. The complainant requested a later deadline for submission, but then did not submit anything within the extended deadline. This, in the Tribunal’s view, satisfied the requirement for due process.
due process; performance evaluation