Judgment No. 3085
1. The Director-General's decisions of 27 June 2009 and 8 February 2010 are set aside as is the Regional Director's decision of 23 June 2008.
2. WHO shall pay the complainant material damages in the amount of 30,000 United States dollars.
3. It shall pay the complainant moral damages in the amount of 20,000 dollars.
4. It shall also pay her 4,000 dollars in costs.
5. All other claims are dismissed.
[T]he three governing principles in the Tribunal’s case law in relation to the non-confirmation of appointment for unsatisfactory performance were fully respected in the complainant’s case. The three principles to which the defendant refers are: the staff member must be informed of the criteria used to evaluate his or her performance; the staff member must be informed of the deficiencies in performance so that remedial steps can be taken and the organisation must take steps to help the staff member to improve; and, the staff member must be clearly warned that continued employment is in jeopardy.
duty to inform; probationary period
complaint allowed; decision quashed; fixed-term; non-renewal of contract; performance evaluation; retaliation; sexual harassment
Considerations 29, 30 and 33
As to the complainant’s allegations of sexual harassment, the Panel found that there was insufficient evidence to support a finding of sexual harassment. The Director-General accepted this finding; however, she elaborated further in connection with an incident that occurred at a team meeting to discuss an upcoming training session that would involve a condom demonstration. According to the complainant, when she enquired whether a wooden model would be available for the demonstration, Dr V. replied that she could demonstrate on him. The Director-General noted that the incident occurred in a relaxed friendly atmosphere and that Dr V.’s comment was not directed at the complainant or at anyone else. However, in her view, the comment was in poor taste, showed a lack of good judgement and had no place in a working environment. She added that she would deal with Dr V. in a separate letter to him.
Whether the complainant’s account or Dr V.’s account as to what transpired at the meeting is accepted, the comment by any standard was offensive and goes beyond being simply a matter of poor taste and bad judgement and amounts to sexual harassment for which the complainant is entitled to moral damages. [...]
She is also entitled to moral damages for the affront to her dignity occasioned by AFRO’s conduct during the course of her probation and for the incident of sexual harassment referred to in considerations 29 and 30. For these matters the Tribunal will award a global amount of 20,000 dollars.
moral injury; sexual harassment
[I]t is true that deficiencies in the complainant’s performance were noted in the PMDS appraisals. However, as to the alleged assistance that was given to the complainant to improve her performance, other than broad assertions on the part of her supervisor that this was done, there is no evidence of any specific guidance or suggestions given to the complainant by Dr V. in terms of concrete steps or measures that the complainant should take to improve her performance in those areas of identified deficiencies and against which improvement in performance could be monitored and measured. Again, given its importance in assessing the overall suitability of the staff member, it would be expected that the specific directions and expectations would be documented. Equally, it would be expected that the guidance Dr V. provided to the complainant would also be documented.
organisation's duties; work appraisal; probationary period; termination of employment; unsatisfactory service; judicial review
The Tribunal has [...] consistently held that “an organisation owes it to its employees, especially probationers, to guide them in the performance of their duties and to warn them in specific terms if they are not giving satisfaction and are in risk of dismissal” and that these two considerations “are fundamental aspects of the duty of an international organisation to act in good faith towards its staff members and to respect their dignity” (see Judgment 2529, under 15, and the case law cited therein).
ILOAT Judgment(s): 2529
good faith; organisation's duties; respect for dignity