Judgment No. 4062
1. The decision of the Director-General of UNESCO of 2 August 2016 and those of 2 October 2014 and 14 November 2014, as well as the complainant’s performance assessment report for the 2012-2013 biennium, are set aside.
2. UNESCO shall pay the complainant material damages and interest thereon, calculated as indicated in consideration 17 of the judgment.
3. The Organization shall pay the complainant moral damages in the amount of 10,000 euros.
4. It shall also pay her 5,000 euros in costs.
5. All other claims are dismissed.
The complainant challenges the decision not to renew her fixed-term contract on the grounds of unsatisfactory performance.
complaint allowed; decision quashed; non-renewal of contract; unsatisfactory service
The Tribunal has consistently held that the executive head of an international organization, when taking a decision on an internal appeal that departs from the recommendations made by the appeals body, to the detriment of the employee concerned, must adequately state the reasons for not following those recommendations (see, for example, Judgments 2339, consideration 5, 2699, consideration 24, 3208, consideration 11, 3695, consideration 9, or 3830, considerations 6 and 8).
ILOAT Judgment(s): 2339, 2699, 3208, 3695, 3830
duty to substantiate decision; internal appeals body; executive head; impugned decision; motivation
The Tribunal has consistently held that international organizations have wide discretion in deciding whether or not to renew fixed-term contracts. Such decisions are therefore subject to only limited review by the Tribunal, which will interfere only if a decision was taken in breach of applicable rules on competence, form or procedure, if it was based on a mistake of fact or of law, if an essential fact was overlooked, if a clearly mistaken conclusion was drawn from the facts, or if there was abuse of authority (see, for example, Judgments 1262, consideration 4, 3586, consideration 6, 3679, consideration 10, 3743, consideration 2, or 3932, consideration 21).
ILOAT Judgment(s): 1262, 3586, 3679, 3743, 3932
fixed-term; non-renewal of contract; judicial review; discretion
Considerations 8 and 12
The evidence, and in particular the hearing before the Reports Board and deliberations of the Appeals Board, as presented in the
respective opinions of these two collegial bodies, shows that at the material time there were serious internal communication shortcomings in the Intangible Cultural Heritage Section, to which the complainant was assigned.
It appears, and the evidence also shows, that this situation was to a large extent due to the great number of responsibilities and particularly complex tasks that had been assigned to that Section. This had in fact prompted the complainant’s direct supervisor, on 20 March 2013, to report his superiors on the Section’s “[i]ntolerable workload”*in a memorandum especially intended for that purpose, in which he emphasised that the resulting working conditions were extremely difficult for himself and for all staff members concerned.
Such a working environment is clearly detrimental to the quality of staff performance and makes it particularly difficult, a fortiori, for employees who are not providing satisfactory services to improve the quality of their performance.
It follows from these provisions, which, moreover, merely state general principles that apply to any professional appraisal procedure, that particular circumstances such as a serious lack of communication between an employee and her/his supervisors, or extraordinary pressure on the service that an employee is working in, resulting from an unbearable collective workload, must be taken into account in assessing the performance of a staff member.
general principle; work appraisal; performance evaluation
The complainant, who is not asking to be reinstated within UNESCO, has however requested compensation for the material injury suffered as a result of the termination of her employment with the Organization.
In this regard, the complainant has no grounds for claiming the payment of all the emoluments which she would have received until she reached retirement age, as the renewal of her fixed-term contract would by no means have guaranteed that the Organization would continue to employ her until the end of her career.
damages; fixed-term; non-renewal of contract; material damages
With respect to the complainant, it is true that the Organization had prepared a performance improvement plan, for which paragraphs 16 et seq. of item 14.4 of the Human Resources Manual provide in the event that a staff member’s performance is deemed unsatisfactory, which was implemented over a period of three months, from March to June 2013. However, the evidence shows that as the complainant’s direct supervisor was not sufficiently available, the requirements of the plan were not fully observed. Indeed, whereas the plan provided for, in particular, weekly meetings between the supervisor and the complainant
in order to define her objectives, the Organization does not seriously dispute that these meetings were not actually held since, apart form the meeting convened for the final assessment, only two meetings between these two persons on the implementation of the plan were organised, on 29 April and 9 July 2013.
It follows from the foregoing that the complainant did not receive the regular feedback from her supervisors that she would have needed in this case in order to substantially improve the quality of her performance.
unsatisfactory service; performance evaluation