Judgment No. 3914
The complaint is dismissed.
The complainant challenges the decision not to renew his project-based fixed-term contract.
non-renewal of contract; complaint dismissed
It is settled principle in the Tribunal’s case law that a decision not to renew a fixed-term contract is within the discretion of the executive head of an international organization and that such a decision is subject to only limited review. Accordingly, the Tribunal has stated as follows in Judgment 3448, consideration 7:
“It is well established in the Tribunal’s case law that the non-renewal of a fixed-term contract is discretionary. Such a decision is subject to only limited review by the Tribunal, which respects the freedom of an international organization to determine its own staffing requirements and the career prospects of staff members. A person who is employed on a fixed-term contract does not have a right or a legitimate expectation to a contract extension. Accordingly, the Tribunal will not interfere with a decision not to extend such a contract unless the decision was made without authority, or in breach of a rule of [form or] procedure, or was based on a mistake of fact or of law, or overlooked some essential fact, or amounted to an abuse of authority.”
ILOAT Judgment(s): 3448
fixed-term; non-renewal of contract
The Tribunal notes that, notwithstanding that the burden to prove discrimination and bias rests with the complainant, the WTO provides evidence which shows that the contracts of other Rules Division staff members which were project-based were not renewed when they expired [...]. The WTO states that they were not renewed because, as in the case of the complainant, the projects to which the contract holders were assigned had come to an end and in a few cases contracts were extended to facilitate work on ongoing projects or for compassionate reasons.
burden of proof; discrimination
The Tribunal notes that the clause in the complainant’s contract relevantly states: “Your attention is drawn to Staff Rules 114.3 and 114.5, which [...] provide for the maximum time-periods within which you may request a review of, or appeal, the terms and conditions of your recruitment.” The complainant did not contest the subjection of his contract to the Short-Term Staff Rules until he raised it in his request for review dated 22 December 2014 and subsequently in his internal appeal. The Tribunal therefore holds that the JAB and the Director General correctly concluded that this claim was then time-barred.
It is convenient to re-state that the complainant held a fixed-term contract, albeit that it was subject to the Short-Term Staff Rules. The case law states that even where a staff rule or regulation provides that such a contract shall expire automatically and without prior notice on the given expiration date, that does not exempt an international organization from notifying a staff member of the non-renewal of her or his contract (see, for example, Judgment 675, under 9 to 11).
ILOAT Judgment(s): 675
general principle; fixed-term; non-renewal of contract; notice
Considerations 15 & 18
As far as providing reasons is concerned, the complainant contends that the WTO provided no or no adequate reason for the non-renewal of the contract. With regard to the duty to provide a reason and the adequacy of that reason, the Tribunal stated as follows in Judgment 1817, consideration 6:
“A staff member needs to know the reasons for a decision so that he can act on it, for example by challenging it or filing an appeal. A review body must also know the reasons so as to tell whether it is lawful. How ample the explanation need be will turn on circumstances. It may be just a reference, express or implied, to some other document that does give the why and wherefore. If little or no explanation has yet been forthcoming, the omission may be repaired in the course of appeal proceedings, provided that the staff member is given his full say.”
The reasons may also be provided to a staff member at a meeting (see Judgment 3662, under 3 to 5). The Tribunal has also stated in Judgment 1750, consideration 6, that “[t]he case law does not require that the reasons be stated in the text that gives notice of non-renewal”.
The Tribunal determines that the [...] statements in the communications and in the internal pleadings permitted the complainant to know that his contract would expire in accordance with its terms and would not be renewed, because it was for the duration of a specific project which had ended and he was not earmarked to work in another project.
ILOAT Judgment(s): 1750, 1817, 3662
duty to substantiate decision; non-renewal of contract
[T]he burden to prove discrimination and bias rests with the complainant [...].
burden of proof; bias; discrimination