Judgment No. 3843
The complaint is dismissed.
The complainant challenges the decision to terminate his contract at the end of his probationary period.
probationary period; termination of employment; complaint dismissed
The Director-General recognized that the termination notice was not given within the prescribed time limit of two weeks before the day of the termination of the six-month probationary period and accordingly followed the Mediator’s recommendation to compensate the complainant with the payment of “an amount equivalent to three months of the salary, including allowances, paid to him during his employment”. The complainant’s assertion that the lateness of the termination notice had the effect of an implicit confirmation of his contract is unfounded. He cites Judgment 3070 to support his assertion but this judgment is not applicable in the present case. Judgment 3070 concerned a situation in which a staff member was put on a six-month probationary period although the Staff Rules provided only for a three-month probationary period. Therefore, the Tribunal found that the notice of termination had to be considered as dismissal before the expiry of the complainant’s contract. In the present case, the termination notice was given prior to the end of the probationary period [...]. The fact that it was given three days after the time limit provided by Article 6.2(c) of the Staff Regulations (“[a]t least two weeks before the end of the probationary period the staff member shall receive notice in writing that his contract is confirmed or terminated”) does not imply that the complainant’s contract should have been considered as automatically confirmed. The wording of Article 6.2(c) (“confirmed or terminated”) excludes the possibility of an automatic or implied confirmation or termination. The Tribunal finds that the payment of compensation in an amount equivalent to three months’ salary and allowances, as recommended by the Mediator and endorsed by the Director-General, was sufficient to remedy the late notification.
ILOAT Judgment(s): 3070
termination of employment; notice
It is consistent case law that the decision to confirm or terminate a contract on completion of a probationary period is a discretionary decision. The Tribunal will not intervene except in cases where the decision was taken without authority or in breach of a rule of form or of procedure, or if 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 abuse of authority (see Judgments 2646, under 5, 3440, under 2, and 3678, under 4, among others). Furthermore, the Tribunal will not replace an organization’s assessment with its own in cases where unsatisfactory performance is the basis for the refusal of confirmation (see Judgment 2916, under 4).
ILOAT Judgment(s): 2646, 2916, 3440, 3678
probationary period; discretion
The claim that the complainant suffered financial damage because of the abrupt termination of his five-year contract is unfounded. As the termination of the complainant’s contract was lawful, he has no right to claim compensation for any financial damage stemming from that decision.