Judgment No. 3997
1. The 2012 performance evaluation of 16 January 2013 shall be removed from the complainantís personnel file and from any other repository of the complainantís employment history with the Global Fund.
2. The Global Fund shall pay the complainant 2,000 Swiss francs in costs.
3. All other claims are dismissed.
The complainant challenges his 2012 performance evaluation.
complaint allowed; performance report
The Global Fund [...] refers to Judgment 3069, consideration 5. In that matter the complainant had, before the internal appeal body, sought symbolic damages in the amount of one Swiss franc but in the proceedings before the Tribunal had sought to convert that claim into a claim for actual and moral damages. The Tribunal found that claim was irreceivable and cited Judgment 2837, consideration 3. The present case is indistinguishable in this respect and the complainant cites no authority to resist the conclusion that the claims for damages are irreceivable. They are not receivable and will be dismissed.
ILOAT Judgment(s): 3069
new claim; moral injury
The remainder of the complainantís claims are that the impugned decision be quashed, that the Tribunal declare the contentious performance evaluation null and void and that he be awarded costs. However there is no basis for granting this relief (putting aside the question of costs) as the performance evaluation was set aside in the impugned decision. At law, it no longer exists so there is nothing on which the order as sought in the Tribunal could operate.
[W]hat ordinarily engages the Tribunalís jurisdiction is a challenge to a final decision with operative legal effect and not a challenge to the reasons underpinning that decision. Obviously if there is a final decision with an operative legal effect then a challenge to that decision can also impugn the reasoning leading to it.
Potentially the only residual issue is whether there is a basis for, additionally, ordering the removal of the original contentious 2012 performance evaluation from the complainantís personnel file which the Global Fund has not contended, with any clarity, has already occurred. Such an order is routinely made by the Tribunal in circumstances where the production of an evaluation report or an analogous document is found to have been legally flawed. Indeed it has been put as highly as an entitlement to have it removed. That is to say, a complainant is entitled to an order that the report be removed from the personnel file (see, for example, Judgment 3378, consideration 12).
ILOAT Judgment(s): 3378