Judgment No. 3922
1. The impugned decision dated 3 March 2015, as well as the prior decisions dated 10 July 2013 and 11 September 2013, which offered the complainant the three-month contract extensions; the decision dated 24 October 2013 terminating her contract; the decision dated 19 December 2013, which closed her harassment complaint and the complainant’s 2012 performance evaluation and its review, are set aside.
2. The Global Fund shall take the steps which are necessary for an investigation to be conducted with respect to the harassment complaint as indicated in consideration 19, above.
3. The Global Fund shall remove the complainant’s 2012 performance evaluation from her personal file and the complainant is entitled to be issued a certificate of service which complies with the Global Fund’s rules.
4. The Global Fund shall pay the complainant material damages in the amount of 40,000 Swiss francs.
5. The Global Fund shall pay the complainant moral damages in the amount of 30,000 Swiss francs.
6. The Global Fund shall also pay her costs in the amount of 1,500 Swiss francs.
7. All other claims are dismissed.
The complainant challenges the decision to offer her a three-month renewal of her contract and to reject the claims she made with respect to her performance evaluation for 2012, the reclassification of her post, the length of her last contract and her allegations of harassment, retaliation and intimidation.
complaint allowed; decision quashed; performance report
With respect to the complainant’s challenge to her 2012 performance evaluation, the basic principles which guide the Tribunal where there is such a challenge were stated as follows, for example, in Judgment 3692, consideration 8:
“As the Tribunal has consistently held, assessment of an employee’s merit during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene in this area only if the decision was taken without authority, if it was based on an error of law or fact, a material fact was overlooked, or a plainly wrong conclusion was drawn from the facts, or if it was taken in breach of a rule of form or procedure, or if there was abuse of authority (see, for example, Judgment 3006, under 7). This limitation on the Tribunal’s power of review naturally applies to both the rating given in a staff report and the comments accompanying that rating.”
It is further found that the review process was tainted with procedural irregularity because, as the complainant contends, she was denied the full list of persons who were requested to give feedback for that exercise. That process was also tainted with procedural irregularity because the complainant was denied access to their synthesized feedback.
ILOAT Judgment(s): 3006, 3692
performance report; judicial review
Paragraph 3 under the heading “Performance Feedback” in Annex VII of the Handbook relevantly states as follows:
“Feedback is collected over the performance cycle [...] from multiple sources, such as colleagues on the team, peers from outside the employee’s division/department who have worked with the employee on specific tasks or projects, managers, subordinates and external stakeholders, as applicable. The selection of additional feedback givers is coordinated with the employee. The line manager selects, with the employee’s input, the group of feedback givers in order to obtain a balanced view about the performance of the employee being evaluated. Where there is no agreement on the list of feedback givers, the HR Business Partner shall facilitate resolution.”
This provision is intended to ensure that feedback in the performance evaluation process is objective, transparent, and well informed. It does not contemplate that feedback will be sought from a person who is not familiar with the work of a subject employee. The ejusdem generis rule operates in its interpretation to ensure that “managers, subordinates and external stakeholders”, as well as “additional feedback givers”, are persons who are familiar with the subject employee’s work during the relevant performance evaluation cycle.
[...] However, the Tribunal accepts the complainant’s assertions, which the Fund has not denied, that two other persons with whom she did not work during 2012 gave feedback for the review process and that she had no input into their selection as feedback givers.
interpretation; performance report
The Tribunal finds that the manner in which the complainant’s harassment investigation was closed was abrupt, arbitrary, unreasonable and without legal basis. The Head of HRD could have at least explained to the complainant why in her view Mr L. was an independent and suitable investigator or in some way resolve that issue, without closing the investigation at that stage.
In the foregoing premises, and since, in the Tribunal’s view, it is necessary that this harassment complaint be investigated pursuant to the Global Fund’s rules, that matter will be returned to the Global Fund which shall take the steps which are necessary for that investigation to be properly conducted.
[T]he Tribunal recalls that it has consistently stated that the non-renewal of a fixed-term contract is discretionary and is subject to only limited review to respect the freedom of an international organization to determine its own staffing requirements and the career prospects of staff members. A person who is employed under such a contract does not, in principle, have a right to a contract extension. However, notwithstanding the discretionary nature of such a decision, it must be taken within the rules and guidelines of the organization and the Tribunal’s case law. Failing this, the decision would be set aside for legal or procedural irregularity (see, for example, Judgment 3257, under 7). The Tribunal has further stated that a valid reason and reasonable notice must be given for a decision not to renew a fixed-term contract (see Judgment 3838, under 6).
ILOAT Judgment(s): 3257, 3838
fixed-term; non-renewal of contract; discretion
The complainant claims that, contrary to its rules, the Global Fund failed to issue the proper certificate of service after her separation. Section 19 of the Handbook states that, upon request, an employee leaving the Global Fund shall be given such a certificate stating her or his length of service and the duties performed. The certificate which the Fund issued to the complainant on 4 April 2014 contains her length of service and the positions which she held, but, in breach of this provision, did not state the duties which she performed. This claim is therefore well founded and the complainant is entitled to be issued a certificate of service which accords to this provision. This breach also entitles the complainant to moral damages.
certificate of service
The Tribunal has no power to order the Global Fund, as the complainant requests, to renew her employment on a “long-term contract of continuing duration” to a post which fits her qualifications, background and experience. Neither does the Tribunal have power to award her material damages equivalent to the amount which she would have received in a higher position (see Judgment 3835, under 6).
ILOAT Judgment(s): 3835
competence of tribunal; order
Regarding the complainant’s request for reinstatement, it was stated, in Judgment 3353, consideration 35, for example, that this will be ordered only in exceptional cases. Inasmuch as the complainant’s post no longer exists, that request is not practicable. However, she will be awarded, by way of material damages, the amount of 40,000 Swiss francs, additional to the amount which the Fund awarded her ex aequo et bono, for the loss of the valuable opportunity to have had her contract renewed.
ILOAT Judgment(s): 3353
reinstatement; material damages