Judgment No. 3845
1. The dismissal decision of 31 July 2015 and the decision of 4 November 2015 are set aside.
2. The ACP Group shall pay the complainant damages calculated as indicated in consideration 10, in compensation for all injury under all heads.
3. The ACP Group shall pay the complainant 5,000 euros in costs.
4. All other complainant’s claims are dismissed, as is the ACP Group’s counterclaim for costs.
The complainant challenges the decision to terminate his appointment at the end of his probationary period.
complaint allowed; decision quashed; probationary period; termination of employment
[A]s the Statute of the Tribunal does not provide for the right to formulate reservations concerning the scope of the Tribunal’s competence, organisations recognising the Tribunal’s jurisdiction accept that all disputes arising between them and their officials may be submitted to the Tribunal.
While it is true that in the letter [...] by which it asked to recognise the Tribunal’s jurisdiction, the ACP Group specified that its request pertained to the provisions of Title IX of the Staff Regulations governing disciplinary proceedings, it ensues from the foregoing that such a request could not be approved in that form. Consequently, the acceptance by the Governing Body of the International Labour Office of the request must be understood as intending to empower the Tribunal to hear all disputes between the ACP Group and its officials.
competence of tribunal; ratione materiae
The way in which the internal means of redress are organised in the Staff Regulations and its annexes is rather unclear. Since the decision [...] did not specify what remedies were available to challenge it, it is understandable in any event that, even with a lawyer’s assistance, the complainant was hesitant to file a complaint directly with the Tribunal without first submitting the appeal to the Chairperson of the Committee of Ambassadors provided for in Annex VIII, paragraph 3, of the Staff Regulations.
In the Tribunal’s view, it is hence justified to apply the firm precedent that while rules of procedure should be strictly complied with, they must not set traps for staff members who are trying to defend their rights and must not be construed with too much formalism, thus allowing the authority to avoid, unlawfully, addressing the merits of the case (see Judgments 1832, under 6, 2882, under 6, 3407, under 19, 3423, under 9(b), and 3759, under 6).
ILOAT Judgment(s): 1832, 2882, 3407, 3423, 3759
The complainant agreed quite freely to sign the new contract including the clause which he now alleges is unlawful, and it was not unjustified, to say the least, to stipulate a trial period, given that the newly agreed appointment was for a period of just over six years.
contract; probationary period
The Tribunal has consistently found that an organisation which employs staff members on a probationary basis must not only provide guidance, instructions and advice on carrying out duties; it must also set objectives for such staff members so that they know what criteria will be used to appraise their performance. It must, in good time and in clear language, inform a staff member of any aspects of her or his performance that are deemed unsatisfactory and warn her or him of the risk of dismissal after the probationary period so that both parties can take appropriate steps to remedy the situation sufficiently early. These requirements flow from the general principles applicable in international civil service law, in particular the principle of good faith, the duty of care and the employer’s duty to respect the dignity of its employees (see Judgments 3481, under 6 and 7, 3482, under 11, and 3678, under 2).
ILOAT Judgment(s): 3481, 3482, 3678
good faith; probationary period; duty of care
The complainant having withdrawn his claim for reinstatement, it suffices for the Tribunal to order compensation for the material damage and moral injury that he has suffered.
Having regard especially to the complainant’s age, his qualifications, his experience and the length of time that he spent in the ACP Group’s service, it is reasonable to award him damages under all heads equivalent to the salary and benefits that he would have received in the 24 months from [...] the date on which he left the organisation, less his professional earnings from other sources over that period. The ACP Group must also pay the complainant the equivalent of the employer’s and employee’s contributions that would have been due to the Provident Fund if his employment had continued during that same period.
moral injury; reinstatement; material damages