Judgment No. 3932
1. The Director-General’s 2 February 2015 decision is set aside as is the earlier decision of 17 May 2013.
2. The FAO shall pay the complainant material damages in the amount of 40,000 euros.
3. The FAO shall pay the complainant moral damages in the amount of 30,000 euros.
4. The FAO shall remove from the complainant’s personnel file all adverse materials dated from 1 January 2012 to the date of the closure of the file.
5. The FAO shall pay the complainant costs in the amount of 1,000 euros.
6. All other claims are dismissed.
The complainant impugns the decision not to renew her fixed-term appointment due to unsatisfactory performance.
complaint allowed; decision quashed; fixed-term; non-renewal of contract; unsatisfactory service
Considerations 21 & 26
The determinative issue in this case is whether the evaluation of the complainant’s performance was procedurally flawed. It is well settled in the Tribunal’s case law that “an organisation has a wide discretion in deciding whether to renew a fixed-term appointment and its right to refuse to renew can be based on unsatisfactory performance”. As well, “such a discretionary decision can be successfully impugned if it is fatally flawed by, for example, procedural defects, a failure to take account of some essential fact, abuse or misuse of authority, or if it was based on an error of fact or of law” (see Judgment 3743, consideration 2, and the cases cited therein). The Tribunal has also consistently held that “an organisation cannot base an adverse decision on a staff member’s unsatisfactory performance if it has not complied with the rules established to evaluate that performance” (see Judgment 3252, consideration 8, and the case cited therein).
It was only in the memorandum of 9 July 2012 that the complainant was informed of the extensive deficiencies in her performance both in terms of her duties and conduct. This letter cannot be viewed as a proper or fair evaluation for a number of reasons. First, it was not in compliance with the mandatory PEMS. Second, other than the deficiencies identified in the audit attributed to the complainant, the letter does not give any detail with respect to when and what the observations were and which interactions with other colleagues at headquarters and in the SAP gave rise to concerns. [...] Third, the unilateral determination that the eleven deficiencies identified in the audit were solely attributable to the complainant and that the renewal of her fixed-term contract was, therefore, in jeopardy, without providing the complainant with an opportunity to respond, was a clear breach of the complainant’s due process rights. This was further exacerbated by her supervisor’s and the Director, OSD’s failure to reply to or take into account the complainant’s extensive response to the alleged deficiencies attributed to her in the audit report.
ILOAT Judgment(s): 3252, 3743
work appraisal; reorganisation; non-renewal of contract; unsatisfactory service; misuse of authority; abuse of power
In the circumstances, reinstatement of the complainant is not appropriate, however, the complainant is entitled to an award of material damages in the amount of 40,000 euros for the lost opportunity to have her appointment renewed. She is also entitled to an award of moral damages in the amount of 30,000 euros and costs in the amount of 1,000 euros. The FAO will also be ordered to remove from the complainant’s personnel file all adverse materials dated from 1 January 2012 to the date of the closure of the file. The claims in relation to sick leave, annual leave, pension contributions and medical expenses have either been settled or are beyond the scope of the present complaint.