Judgment No. 4037
1. The decision of the Director-General of 13 April 2015 is set aside, as is the decision of 17 August 2010.
2. UNESCO shall pay the complainant compensation in the amount of 11,000 euros for the injury suffered under all heads.
3. It shall also pay her 5,000 euros in costs.
4. All other claims are dismissed.
The complainant challenges the non-renewal of her temporary appointment.
complaint allowed; decision quashed; contract; short-term; non-renewal of contract
A steady line of precedent has it that a decision not to renew a fixed-term contract must be notified to the official concerned in good time, particularly so that she or he may exercise her or his right to appeal against it (in this connection, see Judgments 2104, under 6, 2531, under 9, and 3362, under 16).
However, this case law does not require that the official be given an opportunity to submit comments before that decision is taken.
ILOAT Judgment(s): 2104, 2531, 3362
fixed-term; non-renewal of contract; right to be heard
The Tribunal recalls that, under its case law, “[a] staff member needs to know the reasons for a decision so that [she or] 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 [her or] his full say.” (See Judgment 3914, under 15.)
In this case, the evidence shows that the decision of 17 August 2010 referred, albeit in a perfunctory manner, to the special measures taken by UNESCO to put short-term appointments in order and to the on-going restructuring of the sector to which the complainant was assigned. It is also evident from the file that the complainant had been informed of the Organization’s decision to appoint a programme specialist in her sector of activity. The Tribunal hence considers that the complainant was sufficiently informed of the reasons why her appointment was not renewed, as may also be inferred from her extensive comments on this matter in the aforementioned memorandum of 20 August and during the internal appeal proceedings. This plea is thus unfounded.
ILOAT Judgment(s): 3914
The Tribunal observes that, in this case, the complainant objects to the fact that the Organization did not allow her to reach the five years of contributions that would have entitled her to draw a retirement pension from the UNJSPF. However, as the Tribunal has already stated, an international organisation’s duty of care towards its officials does not compel it to extend an official’s appointment for the sole purpose of enabling her or him to draw a pension from the UNJSPF (see, for a comparable case, Judgment 3874, under 14).
ILOAT Judgment(s): 3874
pension; unjspf; duty of care
The complainant [...] submits that UNESCO breached its duty to “reclassify” her. In her view, UNESCO did not make sufficient efforts to find her a new assignment, although she was “pursuing a career” within the Organization. UNESCO counters that, in any event, the duty of “reclassification” relied on by the complainant arises only when a post is abolished. The Tribunal observes that the Organization is correct in this assertion and notes that, contrary to the complainant’s contention, the Organization did seek alternative solutions to the non-renewal of her appointment.
reassignment; non-renewal of contract
The complainant seeks the redefinition of her contractual relationship with UNESCO on the ground that she was in fact pursuing a career within the Organization. The Tribunal notes that for much of its existence, that relationship took the form of consultancy, supernumerary or fee contracts, which, according to Staff Rule 100.2, do not confer the status of staff member on their holders. Moreover, the complainant’s submissions do not establish that the Organization made improper use of these various types of contract. The Tribunal further notes that the complainant had never asked for her contractual relationship to be redefined before the non-renewal of her final appointment. In these circumstances, her request for a redefinition of her employment relationship will be dismissed.
conversion of contract
The Tribunal recalls that, according to its case law, officials are entitled to expect that their case will be dealt with by the internal appeal body within a reasonable time (see, for example, Judgment 3336, under 6). In this case, the Tribunal considers that while the complainant was partly responsible for the delay of which she complains insofar as she had requested and obtained a two-month extension of the time limit for submitting her rejoinder, the internal proceedings lasted an excessively long time having regard to the nature of the case. Their length caused the complainant moral injury, entitling her to damages [...].
ILOAT Judgment(s): 3336
moral injury; internal appeal; delay; reasonable time