Judgment 1666
83rd session, 1997
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 6(C)
Extract:
IT MAY NOT BE INFERRED FROM SHORT-TERM RULE 3.5 AND FROM THE EXTENSION OF HIS APPOINTMENT THAT THE COMPLAINANT WAS ENTITLED TO THE RETROACTIVE GRANT OF NON-LOCAL STATUS. "THE EFFECT OF THE RULE IS TO BESTOW RETROACTIVELY ON A SHORT-TERM OFFICIAL BENEFITS GRANTED TO THE HOLDER OF A FIXED-TERM APPOINTMENT. IF, LIKE THE COMPLAINANT, HE BELONGS TO THE PROFESSIONAL CATEGORY THE PLACE OF RECRUITMENT WILL HAVE NO BEARING ON THE TERMS OF HIS APPOINTMENT. SO NEITHER DOES IT HAVE ANY BEARING ON ENTITLEMENTS GRANTED RETROACTIVELY."
Reference(s)
Organization rules reference: ILO SHORT-TERM STAFF RULE 3.5
Keywords:
appointment; contract; duty station; local status; non-local status; professional category; short-term; staff regulations and rules; terms of appointment;
Judgment 1659
83rd session, 1997
European Free Trade Association
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 12
Extract:
THE COMPLAINANTS "PLEAD BREACH OF REGULATION 12.2(B) WHICH CONFERS PRIORITY FOR RE-EMPLOYMENT ON PERMANENT EMPLOYEES WHOSE POSTS HAD TO BE ABOLISHED. BUT SINCE ALL THE POSTS WERE ABOLISHED THE ASSOCIATION HAD NO CHOICE IN THE MATTER AND NOTHING TO OFFER THE REDUNDANT STAFF BUT THE OPPORTUNITY OF APPLYING FOR JOBS IN THE NEW SECRETARIAT."
Reference(s)
Organization rules reference: EFTA STAFF REGULATION 12.2(B)
Keywords:
abolition of post; competition; contract; exception; organisation's duties; permanent; priority; reassignment; reorganisation; separation from service; staff regulations and rules; termination;
Judgment 1643
83rd session, 1997
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 5
Extract:
IT IS TRUE THAT THE SUSPENSION OF THE UNIT IN WHICH THE COMPLAINANT WAS EMPLOYED WAS BASED ON A MISTAKE ABOUT THE DATE OF EXPIRY OF HER CONTRACT. BUT SHE WAS AWARE OF THE MISTAKE AND KNEW FULL WELL WHAT SHE WAS DOING WHEN SHE ACCEPTED THE IMPUGNED DECISION. "SO SHE MAY NOT PLEAD LACK OF CONSENT."
Keywords:
abolition of post; acceptance; contract; date; decision; duration of appointment; lack of consent; material error; secondment;
Judgment 1618
82nd session, 1997
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 5
Extract:
THE COMPLAINANTS, WHO ARE PERMANENT OFFICIALS, OBJECT TO A CHANGE IN THE SERVICE REGULATIONS WHICH APPLIES TO OFFICIALS UNDER FIXED-TERM APPOINTMENTS. "FOR THE SAME REASONS AS THOSE STATED IN JUDGMENT 1451 THE PRESENT COMPLAINTS ARE RECEIVABLE. WHAT IS AT ISSUE IS NOT A GENERAL DECISION SETTING OUT THE ARRANGEMENTS GOVERNING PAY OR OTHER CONDITIONS OF SERVICE. SUCH ARRANGEMENTS TAKE THE FORM OF INDIVIDUAL IMPLEMENTING DECISIONS THAT EACH EMPLOYEE MAY EVENTUALLY CHALLENGE [...] WHAT IS AT ISSUE HERE IS THE ADOPTION OF RULES ON THE EMPLOYMENT OF CONTRACT STAFF THAT MAY HAVE INDIRECT EFFECTS ON THE STATUS OF PERMANENT EMPLOYEES AS TO THEIR PAY - IF THEY HAVE TO BEAR A HEAVIER FINANCIAL BURDEN - OR AS TO THEIR INDIRECT INVOLVEMENT IN THE FRAMING OF EPO POLICY" AS MEMBERS OF ADVISORY BODIES.
Reference(s)
ILOAT Judgment(s): 1451
Keywords:
case law; competence of tribunal; contract; duration of appointment; exception; fixed-term; general decision; individual decision; permanent; receivability; staff regulations and rules;
Judgment 1617
82nd session, 1997
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 2
Extract:
"WHETHER THE CASE IS ONE OF NON-RENEWAL OR OF DISMISSAL, THE RULES ON NOTICE MUST BE OBSERVED: SO SAY THE PRECEDENTS. THE NEED FOR SUCH A SAFEGUARD IS ORDINARILY NOT SO GREAT WHEN THE APPOINTMENT IS EXTENDED, BUT EXTENDED BY A SHORTER TERM THAN THE CURRENT ONE."
Keywords:
case law; contract; duration of appointment; extension; non-renewal; notice; termination;
CONSIDERATION 3
Extract:
"ON THE STRENGTH OF THE UNFAVOURABLE APPRAISAL NON-RENEWAL OF HER APPOINTMENT MAY HAVE SEEMED TOO HARSH FOR SOMEONE WHO UNTIL THEN HAD HAD GOOD REPORTS WHICH OFFERED HOPE OF IMPROVEMENT. SO THE [ORGANIZATION] CONCLUDED THAT THE RIGHT EXPEDIENT WAS TO GIVE A SHORTER EXTENSION SO THAT SHE MIGHT SHOW HER METTLE. IN COMING TO THOSE CONCLUSIONS ON THE EVIDENCE BEFORE HIM THE DIRECTOR-GENERAL DID NOT GO BEYOND THE BOUNDS OF HIS DISCRETION".
Keywords:
contract; different appraisals; discretion; duration of appointment; executive head; extension; non-renewal; proportionality; staff member's interest; unsatisfactory service; work appraisal;
Judgment 1616
82nd session, 1997
European Southern Observatory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 5
Extract:
THE MERE REMITTANCE OF PAY DOES NOT MEET THE REQUIREMENT OF NOTICE "UNLESS THE PARTIES TO THE CONTRACT OF SERVICE AGREE THAT THE EMPLOYEE SHOULD NOT WORK OUT THE PERIOD OF NOTICE OR THE ORGANISATION PUTS HIM ON SPECIAL LEAVE DURING THAT PERIOD. FAILING THOSE EXCEPTIONS THE EMPLOYEE MUST BE GIVEN ACTUAL NOTICE SO THAT HE MAY MAKE PROPER ARRANGEMENTS FOR LEAVING AND POSSIBLY LOOK FOR ANOTHER JOB. IT IS INADMISSIBLE THAT ANY OFFICIAL, LET ALONE AN ESTABLISHED ONE, SHOULD BE TOLD OF DISMISSAL ON THE VERY DAY ON WHICH IT TAKES EFFECT AND LEFT TO HIS OWN DEVICES WITHOUT FURTHER ADO."
Keywords:
case sent back to organisation; compensatory allowance; complaint allowed; complaint allowed in part; contract; decision quashed; effect; exception; notice; organisation's duties; permanent; purpose; special leave; staff member's interest; termination;
Judgment 1610
82nd session, 1997
World Customs Organization (Customs Co-operation Council)
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 18
Extract:
"IN A CASE OF NON-RENEWAL THE TRIBUNAL WILL BE ESPECIALLY CAUTIOUS IN REVIEWING ANY APPRAISAL BY A SUPERVISOR OF THE STAFF MEMBER'S PERFORMANCE: THE SUPERVISOR HAS THE TECHNICAL BACKGROUND AND THE KNOWLEDGE OF THE STAFF MEMBER'S WORK AND PERSONALITY THAT QUALIFY HIM BETTER THAN ANYONE ELSE TO ADVISE THE HEAD OF THE SECRETARIAT ON THAT SCORE. SOME APPRAISALS OF THE COMPLAINANT'S PERFORMANCE ARE NOT GOOD." OTHERS ARE MORE POSITIVE, THOUGH NOT UNRESERVEDLY. "THOUGH SHE DOES PRODUCE LETTERS OF COMMENDATION FROM SEVERAL QUARTERS, IT IS NOT FOR THE TRIBUNAL TO CHOOSE BETWEEN CONFLICTING ASSESSMENTS: IT IS THE EXECUTIVE AUTHORITY THAT HAS DISCRETION TO DO SO."
Keywords:
contract; different appraisals; discretion; executive head; fixed-term; judicial review; limits; non-renewal; qualifications; supervisor; work appraisal;
CONSIDERATION 24
Extract:
"CAREER PROSPECTS ARE NOT SOMETHING THAT EXIST INDEPENDENTLY. IF THE REFUSAL OF RENEWAL IS LAWFUL, SO IS THE ENDING OF THE CAREER."
Keywords:
career; contract; fixed-term; international civil service principles; legitimate expectation; non-renewal; separation from service;
Judgment 1560
81st session, 1996
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 4
Extract:
"THE COMPLAINANT HAD A TEMPORARY APPOINTMENT. THE STAFF REGULATIONS AND RULES DISTINGUISH SUCH AN APPOINTMENT BOTH FROM A PERMANENT AND A FIXED-TERM ONE AND FROM A TRAINEESHIP AND SUPERNUMERARY EMPLOYMENT. IT DIFFERS IN PARTICULAR FROM A FIXED-TERM APPOINTMENT IN THAT IT IS EXPECTED FROM THE OUTSET TO BE A FAIRLY SHORT STINT, WITH NO MORE THAN A FEW BRIEF EXTENSIONS, WHEREAS THE FIXED-TERM APPOINTMENT IS COMMONLY EXTENDED AND MAY EVEN AFFORD THE BASIS OF A CAREER IN THE ORGANIZATION".
Reference(s)
Organization rules reference: UNESCO STAFF RULE 104.8
ILOAT Judgment(s): 444, 1116
Keywords:
career; contract; definition; difference; duration of appointment; fixed-term; short-term; staff regulations and rules; successive contracts;
Judgment 1546
81st session, 1996
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 18
Extract:
"THE CONCLUSION IS THAT HE HAD QUITE SUFFICIENT WARNING [TWO WRITTEN WARNINGS IN ADDITION TO ORAL WARNINGS AND WRITTEN COMMENTS ON THE QUALITY OF HIS WORK] ABOUT SHORTCOMINGS IN HIS PERFORMANCE AND THE RISK OF NON-RENEWAL. SO IT IS IMMATERIAL WHETHER THE EARLIER CRITICISMS ARE THE SAME AS THOSE ON WHICH THE DECISION RESTS. FURTHERMORE, ALTHOUGH THE ORGANIZATION'S WARNING WAS SUFFICIENT, IT WAS AT LIBERTY TO CITE PRIOR INCIDENTS AS WELL."
Keywords:
conduct; contract; discretion; fixed-term; grounds; non-renewal; unsatisfactory service; warning;
Judgment 1544
81st session, 1996
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 11
Extract:
"A FIRM LINE OF PRECEDENT HAS IT THAT THOUGH A FIXED-TERM APPOINTMENT ENDS AUTOMATICALLY AT THE SCHEDULED DATE OF EXPIRY THE STAFF MEMBER MUST BE TOLD OF THE TRUE GROUNDS FOR NON-RENEWAL AND GIVEN REASONABLE NOTICE OF IT EVEN IF THE CONTRACT DOES NOT EXPRESSLY SO REQUIRE."
Keywords:
case law; complaint allowed; complaint allowed in part; contract; date of notification; decision quashed; duty to substantiate decision; fixed-term; grounds; non-renewal; notice; organisation's duties;
CONSIDERATION 14
Extract:
"REINSTATEMENT WOULD NOT BE APPROPRIATE IN THE CIRCUMSTANCES OF THE CASE. THE COMPLAINANT'S APPOINTMENT WAS LIMITED TO SERVICE IN ZIMBABWE. FROM THE BEGINNING OF 1993 SHE KNEW THAT RELATIONS WITH HER FIRST-LEVEL SUPERVISOR WERE SO UNSATISFACTORY THAT SHE COULD NOT CONTINUE TO SERVE IN THAT COUNTRY; INDEED SHE HERSELF HAD MADE SEVERAL REQUESTS FOR TRANSFER. SHE COULD HAVE HAD NO EXPECTANCY OF RENEWAL OF HER APPOINTMENT IN ZIMBABWE. SHE IS, HOWEVER, ENTITLED TO DAMAGES FOR THE MATERIAL AND MORAL INJURY SHE SUFFERED ON ACCOUNT OF THE PREMATURE TERMINATION OF HER APPOINTMENT AND THE FAILURE TO GIVE HER DUE NOTICE OF NON-RENEWAL. "
Keywords:
complaint allowed; complaint allowed in part; contract; decision quashed; due process; fixed-term; non-renewal; notice; organisation's duties;
Judgment 1526
81st session, 1996
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 3
Extract:
"AN ORGANISATION OWES ITS STAFF A GENERAL DUTY OF CARE, AND MUST NOT CAUSE THEM UNDUE HARDSHIP. A CASE OF NON-RENEWAL IS NO EXCEPTION. THE DUTY MAY ENTAIL AVOIDANCE OR REDUCTION OF INJURY THAT TERMINATION MAY CAUSE [...] AT LEAST WHEN IT WAS NOT A SHORT-TERM APPOINTMENT, WHEN THE RECORD OF SERVICE WAS LONG, AND WHEN THE OFFICIAL HAD REASONABLE EXPECTATIONS OF MAKING A CAREER IN THE ORGANISATION."
Keywords:
career; contract; duration of appointment; general principle; injury; international civil servant; legitimate expectation; moral injury; non-renewal; organisation's duties; respect for dignity; short-term;
CONSIDERATION 2
Extract:
"GOOD FAITH MUST GOVERN RELATIONS BETWEEN ADMINISTRATION AND OFFICIAL [...] IT REQUIRES EACH PARTY TO A CONTRACT TO LET THE OTHER HAVE BEFOREHAND ANY MATERIAL INFORMATION ON POINTS THAT MAY REASONABLY BE SEEN AS DECISIVE. WHETHER A POST IS OF LIMITED OR UNLIMITED DURATION NEED NOT BE A MATTER OF INDIFFERENCE TO THE CANDIDATE SINCE THE DURATION MAY AFFECT STABILITY OF EMPLOYMENT. THE TRIBUNAL IS NOT SATISFIED, HOWEVER, AND INDEED DOUBTS THAT THE WANT OF INFORMATION INFLUENCED THE COMPLAINANT ONE WAY OR THE OTHER."
Keywords:
acceptance; appointment; duration of appointment; duty to inform; offer; organisation's duties; post; security of tenure;
Judgment 1522
81st session, 1996
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 8
Extract:
THE ORGANIZATION HAS "DISCHARGED ITS DUTY TO TAKE AN EXPRESS DECISION DULY GIVING ITS REASONS FOR NOT REINSTATING HIM. ITS DECISION [NOT TO REINSTATE HIM] TAKES SERIATIM ALL THE POSTS HE MIGHT HAVE BEEN APPOINTED TO. IT EXPLAINS THE REASONS OF FACT OR LAW WHY IT CAME TO THE VIEW THAT HIS TRAINING, EXPERIENCE OR GRASP OF LANGUAGES OR THE NEED FOR SPECIAL SKILLS DISQUALIFIED HIM FOR SOME POSTS. THE REASONS WHY HE WAS NOT APPOINTED TO OTHERS HAD TO DO WITH THE BUDGET, SOME POSTS BEING 'FROZEN'. OR ELSE THE REASONS WERE ADMINISTRATIVE: FOR EXAMPLE THE APPOINTMENT AND PROMOTION BOARD WAS NOT IN FAVOUR, OR THE ORGANIZATION GAVE PRIORITY TO A PERMANENT EMPLOYEE."
Keywords:
advisory opinion; application for execution; budgetary reasons; due process; duration of appointment; duty to substantiate decision; judgment; judicial review; knowledge of languages; organisation's duties; permanent; priority; professional experience; promotion board; qualifications; refusal; reinstatement; selection board; training;
Judgment 1481
80th session, 1996
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 7
Extract:
THE ILO HAD TOLD THE COMPLAINANT UPON RECRUITMENT THAT HE COULD EXPECT TO RECEIVE AN APPOINTMENT WITHOUT LIMIT OF TIME IN FIVE OR SIX YEARS. THE TRIBUNAL HOLDS "THAT THE CONDITIONS THAT PRECEDENT REQUIRES ARE MET. THE DIRECTOR-GENERAL WAS WRONG TO REFUSE HIM AN APPOINTMENT WITHOUT LIMIT OF TIME AND TO GRANT HIM ONLY TWO YEARS".
Keywords:
case law; case sent back to organisation; complaint allowed; complaint allowed in part; criteria; decision quashed; duration of appointment; permanent; promise; terms of appointment;
Judgment 1450
79th session, 1995
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 23
Extract:
"HOWEVER MUNICIPAL LAW ON THE GRANT OF FIXED-TERM CONTRACTS MAY VARY FROM COUNTRY TO COUNTRY, THE FACT IS THAT IN THE INTERNATIONAL CIVIL SERVICE SUCH CONTRACTS ARE COMMON AND THE POLICY IS SEEN AS A PROPER AND EVEN NECESSARY METHOD OF ADMINISTRATION. SO THE EPO ACTED UNIMPEACHABLY IN RESORTING TO FIXED-TERM CONTRACTS TO GET AUXILIARY WORK DONE AND SO EASE THE UNDUE RIGIDITY OF ITS STAFF STRUCTURE."
Keywords:
contract; domestic law; duration of appointment; fixed-term; international civil service principles; organisation's interest; practice;
CONSIDERATION 23
Extract:
"...ESPECIALLY WHEN THERE IS NOT FULL EMPLOYMENT, THE DECISION NOT TO RENEW A CONTRACT ON EXPIRY MAY CAUSE HARDSHIP. BUT THAT IS WHY, IN KEEPING WITH PRECEDENT, THE TRIBUNAL WILL IN EACH CASE LOOK TO THE CIRCUMSTANCES IN WHICH THE DECISION NOT TO RENEW OR NOT TO CONVERT TO PERMANENT APPOINTMENT MAY HAVE COME ABOUT."
Keywords:
case law; contract; fixed-term; judicial review; non-renewal; permanent;
CONSIDERATION 24
Extract:
"THE ORGANISATION IS FREE TO MAKE WHATEVER USE IT WISHES OF THE POSSIBILITY OF GRANTING FIXED-TERM CONTRACTS. THE TRIBUNAL WILL NOT INTERFERE IN THE EXERCISE OF SUCH DISCRETION. SO THERE IS ANOTHER ISSUE THAT IT WILL NOT ENTERTAIN, NAMELY WHETHER [...] THE COMPLAINANTS' DUTIES WERE PERMANENT OR TEMPORARY. WHETHER DUTIES ARE PERMANENT OR NOT WILL DEPEND NOT JUST ON THE SORT OF WORK TO BE DONE BUT ALSO ON THE ORGANISATION'S OWN SHIFTING REQUIREMENTS."
Keywords:
contract; discretion; duration of appointment; fixed-term; judicial review; organisation's interest; post description;
CONSIDERATION 25
Extract:
THE COMPLAINANTS "QUITE WITTINGLY CONSENTED [...] TO THE CONTRACTS OF SERVICE THEY WERE OFFERED AND WERE AWARE THAT, BEING FOR A FIXED TERM ,THE CONTRACTS COULD NOT RUN BEYOND THE PERIOD OF TWO YEARS THEY SET. [THEY MAY NOT] OBJECT A POSTERIORI TO AN ESSENTIAL TERM OF THE CONTRACT, VIZ. ITS DURATION, IN AN ATTEMPT TO HAVE IT CONVERTED TO A PERMANENT APPOINTMENT. THEY HAVE ADDUCED NOT A JOT OF EVIDENCE TO SUGGEST THAT THE ORGANISATION ACTED IN ANY BUT ITS OWN LEGITIMATE INTERESTS EITHER WHEN THE CONTRACTS WERE MADE OUT OR WHEN THEY CAME TO AN END."
Keywords:
acceptance; contract; duration of appointment; evidence; fixed-term; lack of evidence; misuse of authority; permanent; terms of appointment;
Judgment 1441
79th session, 1995
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 18
Extract:
"THE COMPLAINANT HELD A FIXED-TERM APPOINTMENT. HIS PROVEN SHORTCOMINGS AND MISCONDUCT WERE UNDOUBTEDLY SUCH THAT THE ORGANIZATION MIGHT HAVE REFUSED WITHOUT FURTHER ADO TO EXTEND HIS APPOINTMENT. AS THE TRIBUNAL HAS ALWAYS ACKNOWLEDGED, AN ORGANISATION HAS DISCRETION IN THE MATTER AND, AS MANY RULINGS BEAR OUT, IT MAY REFUSE RENEWAL ON GROUNDS OF UNSATISFACTORY PERFORMANCE OR MISCONDUCT: FOR A RECENT EXAMPLE SEE JUDGMENT 1405."
Reference(s)
ILOAT Judgment(s): 1405
Keywords:
case law; contract; discretion; fixed-term; misconduct; non-renewal; serious misconduct; unsatisfactory service;
Judgment 1425
79th session, 1995
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 9
Extract:
THE JUDGMENT ON WHICH THE COMPLAINANT RELIES, "RESTORED HER CONTRACTUAL RIGHTS BY QUASHING THE UNLAWFUL DISMISSAL. BUT IT DID NOT CONFER ON HER ANY RIGHTS BEYOND THOSE SHE DERIVED FROM HER CONTRACT. SINCE THE CONTRACT WAS FOR A FIXED TERM CERN HAD NO DUTY EITHER TO CONVERT IT INTO A PERMANENT ONE OR TO EXTEND IT UNTIL SHE WAS FIT TO GO BACK TO WORK."
Keywords:
contract; execution; fixed-term; judgment; organisation's duties; reinstatement; termination;
Judgment 1405
78th session, 1995
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 6
Extract:
"DISCIPLINARY PROCEEDINGS, AND THE SAFEGUARDS THEY AFFORD, ARE RELEVANT IN THE EVENT OF MISCONDUCT WARRANTING DISCIPLINARY ACTION WHILE AN OFFICIAL IS UNDER CONTRACT, AND ONE POSSIBLE SANCTION IS TERMINATION OF THE APPOINTMENT, WHATEVER ITS DURATION MAY BE. DISCIPLINARY PROCEEDINGS DO NOT APPLY IN THE EVENT OF DUE EXPIRY OF A FIXED-TERM APPOINTMENT, WHEN THE ISSUE IS WHETHER IN THE LIGHT OFPAST PERFORMANCE THE CONTRACT SHOULD BE RENEWED. AN ORGANISATION MUST BE ALLOWED FULL FREEDOM TO DECIDE THE ISSUE WITHOUT HAVING TO GO THROUGH THE DISCIPLINARYPROCEDURE."
Keywords:
consequence; contract; disciplinary measure; disciplinary procedure; discretion; fixed-term; misconduct; non-renewal; organisation's interest; safeguard;
CONSIDERATION 4
Extract:
"PRECEDENT ACKNOWLEDGES AN ORGANISATION'S WIDE DISCRETION IN RENEWING A FIXED-TERM APPOINTMENT AND ITS RIGHT TO REFUSE RENEWAL FOR REASONS THAT INCLUDE MISCONDUCT AND UNSATISFACTORY PERFORMANCE".
Keywords:
case law; contract; discretion; fixed-term; misconduct; non-renewal; unsatisfactory service;
CONSIDERATION 6
Extract:
"SINCE DISCIPLINARY PROCEEDINGS ARE IRRELEVANT TO NON-RENEWAL OF A FIXED TERM APPOINTMENT THE COMPLAINANT MAY NOT PROPERLY ALLEGE HIDDEN DISCIPLINARY ACTION."
Keywords:
contract; disciplinary measure; disciplinary procedure; fixed-term; hidden disciplinary measure; non-renewal;
Judgment 1386
78th session, 1995
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 17
Extract:
CONSISTENT PRECEDENT HAS IT "THAT THE ADMINISTRATIVE AUTHORITY HAS THE WIDEST MEASURE OF DISCRETION IN CONFIRMING THE APPOINTMENT OF A PROBATIONER (SEE JUDGMENTS 503, [...] UNDER 2; 687, [...] UNDER 2; 1052, [...] UNDER 4; AND 1161, [...] UNDER 4). THE PURPOSE OF SUCH DISCRETION IS TO ENSURE THAT THE ORGANISATION MAY CHOOSE STAFF IN FULL FREEDOM AND INDEPENDENCE AND IN SO DOING IT WILL ASSESS THE IMPONDERABLE ASPECTS OF THE PROBATIONER'S PERSONALITY, WHICH MUST POSE NO THREAT TO THE HARMONY OF STAFF RELATIONS. HERE THE TRIBUNAL WILL NOT INTERVENE IN THE ADMINISTRATION'S CHOICE EXCEPT IN THE EVENT OF ABUSE OF AUTHORITY OR A CLEAR MISTAKE OF LAW OR OF FACT."
Reference(s)
ILOAT Judgment(s): 503, 687, 1052, 1161
Keywords:
case law; complaint allowed; complaint allowed in part; confirmation of appointment; contract; criteria; decision quashed; discretion; international civil servant; judicial review; organisation's interest; permanent; probation; working relations;
Judgment 1385
78th session, 1995
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATIONS 12 AND 13
Extract:
THE COMPLAINANT HAD HIS SHORT-TERM APPOINTMENT EXTENDED AFTER A BREAK DURING WHICH HE HAD AN EXTERNAL COLLABORATION CONTRACT. UNDER RULE 3.5 OF THE SHORT-TERM RULES WHENEVER THE APPOINTMENT OF A SHORT-TERM OFFICIAL IS EXTENDED BY A PERIOD OF LESS THAN ONE YEAR SO THAT THE TOTAL CONTINUOUS CONTRACTUAL SERVICE AMOUNTS TO ONE YEAR OR MORE, THE TERMS AND CONDITIONS OF A FIXED-TERM APPOINTMENT - WITH CERTAIN EXCEPTIONS - APPLY. "THE INTERRUPTION OF THE COMPLAINANT'S APPOINTMENT BY THE EXTERNAL COLLABORATION CONTRACT WAS MERELY A DEVICE TO DENY HIM THE PROTECTION OF RULE 3.5 WITHOUT FORFEITING THE BENEFIT OF HIS SERVICES. THERE BEING NO CHANGE IN THE ACTUAL CONDITIONS OF EMPLOYMENT, THE REAL INTENTION WAS THAT HE SHOULD CONTINUE TO DO THE SAME WORK AS BEFORE. [...] THE EXTERNAL COLLABORATION CONTRACT MUST BE TREATED LIKE ANY OTHER OF HIS SHORT-TERM CONTRACTS THAT ENSURED CONTINUITY OF SERVICE. SO HIS 'TOTAL CONTINUOUS CONTRACTUAL SERVICE' [EXCEEDED ONE YEAR] AND HE THUS BECAME ENTITLED [...] TO 'THE TERMS AND CONDITIONS OF A FIXED-TERM APPOINTMENT [...]'."
Reference(s)
Organization rules reference: ILO SHORT-TERM RULE 3.5
Keywords:
complaint allowed; complaint allowed in part; contract; duration of appointment; enforcement; extension; external collaborator; fixed-term; intention of parties; interpretation; non-renewal; short-term; staff regulations and rules; successive contracts;
Judgment 1384
78th session, 1995
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
CONSIDERATION 11
Extract:
THE COMPLAINANT WAS ACCUSED OF REMOVING COMPUTER EQUIPMENT FROM THE WORK PLACE. THE ORGANIZATION ACCORDINGLY DECIDED NOT TO RENEW HIS FIXED-TERM APPOINTMENT. AFTER CARRYING OUT AN INQUIRY, THE REGIONAL DIRECTOR SUBMITTED A FIRST REPORT WHICH "SHOWED THAT THERE WAS AT MOST MERE SUSPICION THAT THE COMPLAINANT MIGHT HAVE BEEN INVOLVED. THERE WAS NO BASIS ON WHICH THE ORGANIZATION COULD CONTEND THAT THE CHARGE OF THEFT HAD BEEN SATISFACTORILY PROVED. WHAT IT DID IN EFFECT WAS TO REVERSE THE BURDEN OF PROOF BY EXPECTING THE COMPLAINANT TO SHOW THAT HISCONDUCT WAS 'SPOTLESS'."
Keywords:
burden of proof; complaint allowed; conduct; contract; decision quashed; evidence; fixed-term; inquiry; lack of evidence; misconduct; mistake of law; non-renewal; presumption; serious misconduct;
CONSIDERATION 16
Extract:
THE COMPLAINANT WAS ACCUSED OF REMOVING COMPUTER EQUIPMENT FROM THE WORK PLACE. FOR THAT REASON THE ORGANIZATION DECIDED NOT TO RENEW HIS FIXED-TERM APPOINTMENT. "THE DECISION NOT TO RENEW THE COMPLAINANT'S CONTRACT WAS BASED ON LOSS OF CONFIDENCE CONSEQUENT UPON THE FINDING OF MISCONDUCT. THAT FINDING WAS BASED ON AN ERROR OF LAW AS TO THE BURDEN OF PROOF; RULES OF PROCEDURE RELATING TO THE RIGHT OF DEFENCE WERE SERIOUSLY VIOLATED; ESSENTIAL FACTS WERE NOT TAKEN INTO CONSIDERATION; AND CLEARLY MISTAKEN CONCLUSIONS WERE DRAWN FROM THE FACTS. SO THE FINDING CANNOT STAND, AND THE PLEA OF LOSS OF CONFIDENCE WHICH THE ORGANIZATION BASED THEREON MUST BE REJECTED."
Keywords:
breach; burden of proof; complaint allowed; conduct; contract; decision quashed; disregard of essential fact; evidence; fixed-term; misconduct; mistake of law; mistaken conclusion; non-renewal; right to reply; serious misconduct;
CONSIDERATION 17
Extract:
THE COMPLAINANT WAS CHARGED WITH REMOVING COMPUTER EQUIPMENT FROM THE WORK PLACE BUT NO EVIDENCE OF THEFT WAS EVER PRODUCED. "THE DECISION NOT TO RENEW HIS CONTRACT, BASED AS IT WAS ON A FINDING OF THEFT, MUST HAVE SERIOUSLY HARMED HIS MORAL AND SOCIAL STANDING AND HIS PROSPECTS OF FINDING OTHER EMPLOYMENT."
Keywords:
complaint allowed; contract; decision quashed; fixed-term; misconduct; moral injury; non-renewal; professional injury; serious misconduct;
CONSIDERATION 18
Extract:
THE COMPLAINANT WAS ACCUSED OF STEALING COMPUTER EQUIPMENT BUT NO FORMAL PROOF OF THIS WAS EVER GIVEN. THE ORGANIZATION DECIDED NOT TO RENEW HIS FIXED-TERM APPOINTMENT ON GROUNDS OF THEFT. THE TRIBUNAL HOLDS THAT THE COMPLAINANT "MUST BE PUT IN THE SAME POSITION AS IF HIS CONTRACT HAD NEVER TERMINATED AND BE REINSTATED AS FROM THE DATE OF TERMINATION UP TO THE DATE OF THIS JUDGMENT. SINCE HIS PERFORMANCE WAS GOOD HE SHOULD BE GRANTED ANY WITHIN-GRADE SALARY INCREASES HE WOULD ORDINARILY HAVE BEEN ENTITLED TO. ALTHOUGH ANY INDEMNITIES OR EARNINGS FROM EMPLOYMENT AFTER TERMINATION MAY BE DEDUCTED FROM THE AMOUNTS DUE, HE IS ENTITLED TO THE PAYMENT OF INTEREST ON ALL ARREARS OF PAY AT THE RATE OF 8 PER CENT A YEAR FROM THE DATES AT WHICH EACH COMPONENT SUM FELL DUE. [...] HE IS TO BE GRANTED AN APPOINTMENT FOR A PERIOD OF TWO YEARS STARTING AT THE DATE OF DELIVERY OF THIS JUDGMENT."
Keywords:
compensation; complaint allowed; contract; date; decision quashed; fixed-term; increment; interest on damages; non-renewal; procedural flaw; professional injury; reckoning; reconstruction of career; reinstatement;
CONSIDERATION 15
Extract:
THE COMPLAINANT WAS ACCUSED OF REMOVING COMPUTER EQUIPMENT FROM THE WORK PLACE. FOR THAT REASON THE ORGANIZATION DID NOT RENEW HIS FIXED-TERM CONTRACT. "THERE WERE MANY FLAWS IN THE PROCEDURE THAT THE ORGANIZATION FOLLOWED. IT DID NOT ALLOW THE COMPLAINANT TO BE PRESENT WHEN STATEMENTS WERE TAKEN FROM THE WITNESSES OR TO QUESTION THEM. [...] NOT ONLY WAS HE DENIED ACCESS TO THEIR STATEMENTS BUT EVEN THEIR IDENTITY WAS CONCEALED FROM HIM. [...] NO VERBATIM RECORD OF THE STATEMENTS BY THE WITNESSES WAS EVER PRODUCED." HE NEVER GOT TO SEE THE RESULTS OF THE INVESTIGATION CARRIED OUT INTO THE MATTER AND HE WAS NOT GIVEN AN OPPORTUNITY TO PUT FORWARD ANY ARGUMENTS IN HIS FAVOUR. "THE CONCLUSION IS THAT HE WAS DENIED HIS RIGHT TO DEFEND HIMSELF BEFORE AN ADVERSE DECISION WAS TAKEN [...] THE COMPLAINANT'S RIGHT OF DEFENCE WAS SERIOUSLY PREJUDICED."
Keywords:
complaint allowed; conduct; contract; decision quashed; due process; fixed-term; flaw; inquiry; misconduct; non-renewal; procedural flaw; right to reply; serious misconduct;
CONSIDERATION 9
Extract:
"AS THE TRIBUNAL HAS CONSISTENTLY AFFIRMED - MORE RECENTLY, FOR EXAMPLE, IN JUDGMENT 1317 [...], UNDER 24 AND 28 - AN ORGANISATION IS REQUIRED TO GIVE A REASON FOR [THE] NON-RENEWAL [OF A FIXED-TERM APPOINTMENT]".
Reference(s)
ILOAT Judgment(s): 1317
Keywords:
case law; complaint allowed; contract; decision; decision quashed; duty to substantiate decision; fixed-term; non-renewal;
CONSIDERATION 18
Extract:
THE ORGANIZATION ACCUSED THE COMPLAINANT OF REMOVING COMPUTER EQUIPMENT FROM THE WORK PLACE. IT DECIDED NOT TO RENEW HIS FIXED-TERM APPOINTMENT ON THE GROUNDS OF THEFT. "THE DAMAGE TO THE COMPLAINANT'S CAREER AND REPUTATION IS SO GRAVE THAT NOTHING SHORT OF REINSTATEMENT AND THE GRANT OF A FURTHER CONTRACT OF EMPLOYMENT WILL SUFFICE."
Keywords:
compensation; complaint allowed; contract; decision quashed; fixed-term; moral injury; non-renewal; professional injury; reinstatement;
