Judgment No. 4215
Decision
1. The decision of OTIF’s Administrative Committee of 28 June 2017, the decision of the Chairman of the Administrative Committee of 25 April 2013, and the decision of the Administrative Committee of 26 and 27 June 2013 are set aside.
2. OTIF shall pay the complainant 50,000 Swiss francs in damages under all heads.
3. The Organisation shall pay the complainant 13,549.35 Swiss francs, with interest calculated as specified in consideration 28 above, by way of indemnities linked with his separation from service.
4. It shall also pay him 7,000 Swiss francs in costs.
5. All other claims are dismissed.
Summary
The complainant challenges the decision not to confirm his appointment at the end of his probation period.
Judgment keywords
Keywords
complaint allowed; decision quashed; work appraisal; probationary period
Considerations 3-4
Extract:
[T]he evidence shows that the Administrative Committee was invited to consider the case on the basis of an introductory note and a proposed decision drawn up by the Secretary General, which reflected, entirely one-sidedly, the case put by OTIF’s administration. In breach of the adversarial principle, those documents were not communicated to the complainant at that stage and were disclosed only when OTIF filed its reply in these proceedings.
Moreover, the minutes of the session of the Administrative Committee on 28 June 2017 show that the external legal counsel who was defending OTIF’s interests addressed the Administrative Committee at the beginning of the meeting in the absence of the complainant’s representative, and that although the Secretary General did indeed leave the room during the in camera deliberations, that counsel went on to take part in the discussion, thus compromising the Committee’s neutrality.
As the Tribunal stated in Judgment 3909 concerning a complaint filed by another OTIF official whose internal appeal had been considered in similar circumstances, such proceedings breach the right to due process (see Judgment 3909, consideration 6, and, for similar cases, Judgments 3421, consideration 3, and 3648, consideration 10).
Reference(s)
Jugement(s) TAOIT: 3421, 3648, 3909
Keywords
procedural fairness
Consideration 9
Extract:
According to the Tribunal’s settled case law, an organisation enjoys broad discretion in deciding whether to confirm a staff member’s appointment at the end of a probation and consequently, this decision is subject to only limited review by the Tribunal. The Tribunal has, in particular, stated on numerous occasions that where the reason for non-confirmation is unsatisfactory performance, it will not replace the organisation’s assessment with its own. It is, however, for the Tribunal to ascertain whether the 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 1418, consideration 6, 2646, consideration 5, 2977, consideration 4, 3440, consideration 2, 3844, consideration 4, and 3913, consideration 2).
Reference(s)
Jugement(s) TAOIT: 1418, 2646, 2977, 3440, 3844, 3913
Keywords
probationary period
Considerations 12 & 18
Extract:
It is well established that an organisation which requires a staff member to undergo a probation period on his appointment must, in particular, set objectives for him so that he knows what criteria will be used to assess his performance, assess his merits following the proper procedure and, if it finds his performance unsatisfactory, inform him in sufficient time for him to attempt to remedy the situation, and warn him in specific terms if there is a risk that his appointment will not be confirmed at the end of his probation (see, for example, on these various points, Judgments 1741, considerations 15 and 16, 2529, consideration 15, 2788, consideration 1, 3240, consideration 21, 3845, consideration 8, and 3866, considerations 5 and 10).
[...]
Lastly, [...] although the complainant was informed of his alleged shortcomings, the evidence shows that he was not warned in specific terms, as required under the Tribunal’s case law, of the risk that his appointment would not be confirmed at the end of his probation period.
Keywords
work appraisal; probationary period
Consideration 20
Extract:
[T]he Tribunal will not grant the complainant’s request for an order to reinstate him at OTIF. It considers that, particularly in view of the time that has passed since the complainant left the Organisation and the real difficulties that such a reinstatement would inevitably create, such an order is not advisable in this case.
Keywords
reinstatement
Consideration 22
Extract:
In respect of material injury, the unlawfulness of the decision [...] which in particular made it impossible for the complainant to improve his performance in a timely manner, denied him a valuable opportunity to have his appointment confirmed at the end of his probation period and to receive in consequence the remuneration specified in his letter of appointment for the remaining 30 months of that appointment.
Keywords
material injury; loss of opportunity
Consideration 23
Extract:
As far as moral injury is concerned, the Tribunal considers that the non-confirmation of the complainant’s appointment also caused him substantial harm in this respect, particularly inasmuch as it was liable to damage his professional reputation.
It might be observed in this regard that the Organisation itself attempted to limit that harm by endeavouring, as stated above, not to cite the complainant’s unsatisfactory performance as the official basis for the decision and by sending to his national civil service, at the same time, an appraisal that passed over the criticism of his performance. However, besides the fact that the Tribunal plainly cannot condone such questionable actions, it is highly doubtful that they actually minimised the harm to the complainant’s professional reputation.
Moreover, the abruptness with which the complainant’s appointment was ended, forcing him to leave his duties almost immediately after he was notified of the impugned decision, inevitably caused him distress.
Keywords
moral injury; professional reputation
Consideration 24
Extract:
[T]he period of some 11 months which it took to handle this appeal is not inherently unreasonable and, insofar as the complainant was not in a precarious position from the point of view of employment during this period, this time frame did not cause him substantial injury.
Keywords
moral injury; delay in internal procedure
Consideration 26
Extract:
There are no grounds in this case for granting the complainant’s claim that OTIF should additionally be ordered to pay him exemplary damages.
Keywords
exemplary damages
Consideration 27
Extract:
The complainant has requested that OTIF be ordered to make an official public apology. However, as the Tribunal has stated on many occasions, it is not competent to make orders of this kind (see, for example, Judgments 2636, consideration 16, 3069, consideration 5, and 3597, consideration 10).
Reference(s)
Jugement(s) TAOIT: 2636, 3069, 3597
Keywords
apology
Consideration 28
Extract:
OTIF is, however, obliged to pay the complainant the sums mentioned above which it has acknowledged that it owes him. Indeed, the fact that, as OTIF points out, the complainant did not accept the above-mentioned final balance of all accounts cannot release it, in any event, from its obligation to pay him the indemnities to which he is entitled.
Keywords
terminal entitlements
Consideration 29
Extract:
The Tribunal will not [...] grant the complainant’s claims for compensation for new heads of injury which were submitted for the first time in his rejoinder, since such claims are, for that very reason, irreceivable (see, for example, Judgments 960, consideration 8, 1768, consideration 5, and 2965, consideration 11).
Reference(s)
Jugement(s) TAOIT: 960, 1768, 2965
Keywords
new claim; rejoinder
Consideration 17
Extract:
[A]lthough the complainant must have known that the Secretary General was not satisfied with his performance, he was not given the necessary time to remedy this situation. To underline this point, it suffices to recall that the decision to end the complainant’s appointment was taken on 25 April 2013, that he was notified of it – according to his uncontested account – on 30 April and that it took effect on 1 May, whereas the complainant had taken up his duties just a few weeks previously on 1 March 2013, and his probation period was due to end on 30 June. The complainant thus had very little time to prove his worth and, above all, was given no opportunity to take appropriate action in response to the criticisms directed at him. This is made still clearer by the emails submitted by the Organisation showing that the Secretary General’s criticisms of the complainant were, for the most part, not made until the fortnight immediately preceding the decision of 25 April. The fact is that when the complainant received the decision, he was presented with a fait accompli, which blatantly contradicts the requirement laid down in the case law that in such a situation a staff member must be granted sufficient time to enable him to improve his performance.
Keywords
duty to inform; probationary period; termination of employment; duty of care
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