Judgment No. 1246
1. THE ORGANISATION SHALL PAY THE COMPLAINANT THE EQUIVALENT OF ONE YEAR'S SALARY AND ALLOWANCES IN DAMAGES.
2. IT SHALL PAY HER 10,000 SWISS FRANCS IN COSTS.
In her first complaint the complainant challenges what she regards as the implied rejection of her claim; in her second one she impugns express rejection. "The cause of action and the parties' pleas being the same, the two complaints are joined and there is no need to rule on the organisation's objection. Since the second complaint is receivable the Tribunal will go into the merits."
complaint; express decision; implied decision; joinder; receivability of the complaint; cause of action
"As the Tribunal has held on several occasions, for example in Judgment 1183, a decision by the Director-General not to confirm the appointment of a probationer 'is a discretionary one. Its power of review being limited, the Tribunal will set the decision aside only if it finds a mistake of fact or of law, or a formal or procedural flaw, or a clearly mistaken conclusion on the evidence, or neglect of an essential fact or abuse of authority.'"
ILOAT Judgment(s): 1183
decision; case law; probationary period; extension of contract; judicial review; discretion; disregard of essential fact; flaw; formal flaw; procedural flaw; mistake of fact; mistaken conclusion; misuse of authority; refusal; abuse of power
"The purpose of Article 6.7.3 of the Staff Regulations is that the lapse of time between first and second reports should be long enough - the period prescribed is nine months - to give the probationer a proper opportunity of showing his mettle before the second report has to be made. The period of less than three months that the complainant was allowed was far too short to allow of any substantial improvement. [...] The procedural flaw caused the complainant injury."
cause of action; delay; due process; staff regulations and rules; performance report; probationary period; qualifications; flaw; procedural flaw; date
"The procedural flaw caused the complainant injury. As to the relief she is entitled to on that account, the Tribunal holds that it is not advisable to grant her the redress that would ordinarily be the consequence of quashing the impugned decision, namely reinstatement. The Tribunal therefore exercises the discretion vested in it by Article VIII of its Statute and instead awards the complainant damages for the breach of procedure. It sets the amount at the equivalent of one year's salary and allowances."
ILOAT reference: ARTICLE VIII OF THE STATUTE
decision; tribunal; due process; iloat statute; reinstatement; salary; allowance; flaw; procedural flaw; compensation; right; material damages