Judgment No. 3913
1. The impugned decision of 12 June 2015 is set aside.
2. The OPCW shall pay the complainant material and moral damages in the total amount of 2,000 euros.
3. The OPCW shall pay the complainant costs in the amount of 5,000 euros.
4. All other claims are dismissed.
The complainant challenges the decision to terminate her appointment at the end of her probationary period.
complaint allowed; decision quashed; probationary period; termination of employment
The Tribunal [...] notes that the basic principles governing probation have been consistently stated, for example, in Judgment 2646, consideration 5, as follows:
“[T]he Tribunal recalls that the reason for probation is to enable an organisation to assess the probationer’s suitability for a position. For this reason, it has recognised that a high degree of deference ought to be accorded to an organisation’s exercise of its discretion regarding decisions concerning probationary matters including the confirmation of appointment, the extensions of a probationary term, and the identification of its own interests and requirements. The Tribunal stated in Judgment 1418, under 6, that a discretionary decision of this kind will only be set aside ‘if 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’. It also reaffirmed that ‘where the reason for refusal of confirmation is unsatisfactory performance, [it] will not replace the organisation’s assessment with its own’.” [...]
This case law was recently confirmed in Judgment 3844, consideration 4.
ILOAT Judgment(s): 1418, 2646, 3844
probationary period; discretion
In any event, there is no principle that prevents an organisation from deciding not to confirm the appointment of a probationer who is on sick leave.
probationary period; termination of employment; sick leave