Judgment No. 3264
1. The impugned decision is set aside.
2. The ILO shall pay the complainant moral damages in the amount of 15,000 Swiss francs.
3. It shall also pay the material damages in an amount equivalent to one year’s salary, including all benefits, entitlements and emoluments together with interest at the rate of 5 per cent per annum as from 1 July 2010.
4. The ILO shall also pay the complainant costs in the amount of 1,200 Swiss francs.
5. All other claims are dismissed.
The complainant successfully impugns the decision not to renew her contract after an extension of her probationary period and is granted damages.
complaint allowed; decision quashed; confidential evidence; disclosure of evidence; general principle; right to reply; due process; good faith; organisation's duties; duty to inform; respect for dignity; breach; work appraisal; performance report; probationary period; extension of contract; non-renewal of contract; unsatisfactory service; judicial review; discretion; procedural flaw
"The purpose of probation is to give an organisation an opportunity to evaluate a probationer’s suitability for a position (see Judgment 2646, under 5). This gives rise to corollary obligations on the part of the organisation to warn a staff member in a timely manner that her or his performance is unsatisfactory, to give the staff member guidance and an opportunity to improve and to set objectives against which improvement can be measured. These 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 2414, under 23)."
ILOAT Judgment(s): 2414, 2646
good faith; organisation's duties; duty to inform; respect for dignity; probationary period; unsatisfactory service
"[D]uring the extension of the probationary period, [...] its duty to act in good faith obligated the Organization to give the complainant guidance and a meaningful opportunity to improve measured against objective standards."
good faith; organisation's duties; work appraisal
It is well established in the Tribunal’s case law that a “staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) its decision against him”. Additionally, “[u]nder normal circumstances, such evidence cannot be withheld on grounds of confidentiality” (see Judgment 2700, under 6). It also follows that a decision cannot be based on a material document that has been withheld from the concerned staff member (see, for example, Judgment 2899, under 23).
Although Article 10.3 of the Staff Regulations provides that the “proceedings of the [Reports] Board shall be regarded as secret”, this alone does not shield a report of the Board from disclosure to the concerned official. In the absence of any reason in law for non-disclosure of the report, such non-disclosure constitutes a serious breach of the complainant’s right to procedural fairness.
ILOAT Judgment(s): 2700, 2899
confidential evidence; disclosure of evidence; due process; breach; procedural flaw