Judgment No. 1386
1. THE DECISIONS OF 10 AND 29 JUNE 1992 AND 24 MARCH 1993 TO DISMISS THE COMPLAINANT AT THE END OF PROBATION ARE SET ASIDE.
2. THE ORGANISATION SHALL PAYHIM DAMAGES EQUIVALENT TO THE AMOUNT HE WOULD HAVE RECEIVED IN EARNINGS FROM THE DATE OF DISMISSAL UNTIL THE END OF THE MONTH IN WHICH THIS JUDGMENT IS DELIVERED, SAVE THAT THE EPO MAY SUBTRACT ANY SUMS IT MAY HAVE PAID HIM IN TERMINAL ALLOWANCE.
3. HE IS AWARDED 25,000 FRENCH FRANCS IN MORAL DAMAGES.
4. HE IS AWARDED25,000 FRENCH FRANCS IN COSTS.
5. HIS OTHER CLAIMS ARE DISALLOWED.
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."
ILOAT Judgment(s): 503, 687, 1052, 1161
case law; contract; probationary period; permanent appointment; working relations; judicial review; discretion; organisation's interest; criteria; official
A probationer "has every right to expect of the administration that it will provide proper conditions for probation."
due process; organisation's duties; probationary period
The Tribunal holds that since the notice of vacancy "had to be in general enough terms to attract a wide variety of applicants it cannot be regarded as a specific enough job description to be of use to the official."
staff member's interest; post description; competition; vacancy notice
"The administration is [...] at fault for not giving the complainant sufficient warning that there had been criticism of him and the success of his probation was in jeopardy. The organisation contends that he did get several oral warnings. Yet, contrary to the requirements of due administrative process, the file contains no evidence of such warnings, or their date or substance. The Tribunal is therefore unable to assess their scope."
due process; duty to inform; probationary period; qualifications; termination of employment; warning; procedural flaw
"The relief the complainant seeks includes reinstatement in his post or, failing that, damages for material and moral injury [...]. The Tribunal holds that reinstatement, which could only mean reinstatement for a further probationary period, would raise insurmountable practical difficulties because of the time that has elapsed since the date of dismissal [...]. [The complainant is] entitled to full compensation for the material and moral injury he sustained."
material injury; moral injury; probationary period; reinstatement; termination of employment; compensation; date; refusal; subsidiary; material damages
The complainant was wrongfully dismissed following probation. The Tribunal holds that "in material damages the EPO shall pay him an amount equivalent to the emoluments he would have earned from the date of dismissal until the end of the month in which the Tribunal delivers the present judgment. Since he has convincingly shown that he has not been employed since the EPO dismissed him, the organisation may not subtract from that amount any indemnities or other earnings he may have received during that period."
material injury; reckoning; probationary period; termination of employment; flaw; compensation; material damages
The Tribunal "accepts that the premature dismissal caused him moral injury in relation not only to his family and private life but also to his career prospects. Those prospects suffered from the EPO's having gravely compromised his chances of finding other employment by putting in the documents concerning his dismissal, and in breach of his rights of defence, criticism which could not under the circumstances be reviewed. The complainant shall accordingly receive, over and above the redress which the present judgment in itself affords him, damages".
moral injury; professional injury; judgment of the tribunal; right to reply; career; termination of employment; compensation