Judgment No. 3772
The complaint is dismissed.
The complainant challenges the decision not to award him a contract without limit of time.
conversion of contract; complaint dismissed
The complainant has applied for oral proceedings, but in view of the explicit briefs and documents submitted by the parties, the Tribunal considers that it has received sufficient information and such proceedings are hence unnecessary.
The Tribunal recognises the wide discretion enjoyed by an organisation in deciding whether or not to convert a fixed-term appointment into an indefinite one (see Judgment 1349, under 11). Such a decision is subject to limited review and will be set aside only “if it is taken without authority or in breach of a rule of form or of procedure, or if it is based on a mistake of fact or of law, or if some essential fact was overlooked, or if clearly mistaken conclusions were drawn from the facts, or if there was an abuse of authority” (see Judgments 2694, under 4, and 3005, under 10). In particular, the Tribunal will not substitute its own opinion for that of the organisation assessing the merits of the various candidates for titularisation.
ILOAT Judgment(s): 1349, 2694, 3005
discretion; conversion of contract
According to the Tribunal’s case law, the reasons for a decision must be sufficiently explicit to enable the staff member concerned to take an informed decision accordingly; they must also enable the competent review bodies to determine whether the decision is lawful and the Tribunal to exercise its power of review. How extensive those reasons need be will depend on the circumstances (see Judgments 1817, under 6, and 3617, under 5).
The Tribunal notes that the reason given to the complainant in the decision of 6 March 2014 for the dismissal of his internal complaint was that the Sub-Committee had “performed its task with diligence and care”. However, this explanation was not sufficiently explicit, since it did not contain precise details that would allow the complainant, or indeed a judge, to understand the real grounds on which the decision was based.
In the present case, it was not until the complainant read the ILO’s reply to his complaint before the Tribunal that he became fully aware of the reasons for which he had not been granted a contract without limit of time. That decision itself therefore furnished insufficient reasons. However, the Tribunal’s case law has it that the reasons for a decision need not necessarily appear in the decision itself but can be contained in other documents communicated to the official concerned; they may even be set forth in briefs or submissions produced for the first time before the Tribunal, provided that the complainant’s right of appeal is fully respected (see, for example, Judgments 1289, under 9, 1817, under 6, 2112, under 5, or 2927, under 7).
In this case, the complainant’s rejoinder provided an opportunity for him to express his opinion regarding the reasons for the impugned decision stated in the ILO’s reply. As the lack of reasoning noted above was hence remedied during the proceedings before the Tribunal, this plea will be dismissed.
ILOAT Judgment(s): 1289, 1817, 2112, 2927, 3617