Judgment No. 4169
1. The decision of the Director-General of UNESCO of 27 November 2015, the decisions of 25 January and 8 April 2011, and the complainant’s performance report for the 2008-2009 biennium are set aside.
2. UNESCO shall pay the complainant material damages and interest thereon, calculated as indicated in consideration 12 of the judgment.
3. The Organization shall pay the complainant 2,500 euros in moral damages.
4. It shall also pay her 750 euros in costs.
5. All other claims are dismissed.
The complainant challenges her performance report for the 2008-2009 biennium and the decision to defer her within-grade salary increment until 1 February 2011.
complaint allowed; decision quashed; performance evaluation
The complainant has filed five complaints against five decisions of the Director-General of UNESCO, all dated 27 November 2015, and asks that they be joined. However, it is appropriate to consider the present complaint separately as it raises distinct legal questions from those raised in the other complaints and merits individual attention. An order joining the present complaint to the four others – which are likewise the subject of judgments delivered in public this day – will therefore not be made.
[T]he allegations which the complainant made against her supervisor [...] were summarised in the presentation of the parties’ arguments, but after having noted that “the [complainant] [...] makes reference to a number of incidents surrounding the drawing up of the impugned [performance] report”, the Appeals Board merely stated that “the statements of the [complainant]’s supervisors, her own statement and that of her Counsel [...] before the Reports Board” were taken into account. This sweeping generalisation does not allow the Tribunal to understand the reasons for which the complainant’s allegations concerning the attitude of her supervisor [...] were accepted or dismissed, and to what extent, if at all. Since the Appeals Board did not respond to the complainant’s allegations, it is impossible to determine whether the Board gave due consideration to the question [...].
internal appeals body; motivation
At this stage in its findings, the Tribunal should normally refer the case back to UNESCO for the Appeals Board to re-examine the complainant’s appeal. However, given the length of time since the events and for the sake of procedural efficiency, the Tribunal will not do so and will itself assess the lawfulness of the Director-General’s decision [...].
case sent back to organisation
The Tribunal has consistently held that international organisations have wide discretion in taking decisions concerning staff performance appraisal. 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 1583, consideration 2, 3039, consideration 7, or 4010, consideration 5).
ILOAT Judgment(s): 1583, 3039, 4010
discretion; performance evaluation
Since the Appeals Board did not respond to the complainant’s allegations, it is impossible to determine whether the Board gave due consideration to the question of whether the complainant’s partly unfavourable performance rating and the deferral of her within-grade increment owed to prejudice or other extraneous factor, as required under paragraph 5(b) of the Board’s Statutes, which was hence breached. Furthermore, that provision merely illustrates the general principles that apply in this matter, regardless of whether they are laid down in any rule or regulation.
The impugned decision of 27 November 2015 rests on the opinion delivered by the Appeals Board, which the Director-General simply accepted. That decision is, consequently, tainted by the same error of law and must be set aside (see, for similar cases, Judgments 2742, consideration 40, 2892, consideration 14, 3490, consideration 18, and 3934, consideration 5).
ILOAT Judgment(s): 2742, 2892, 3490, 3934
internal appeals body; judicial review; advisory opinion