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Judgment No. 4257

Decision

1. Subject to order 2, the complaint is dismissed.
2. The EPO shall pay the complainant 750 euros costs.

Summary

The complainant challenges his staff report for 2014.

Judgment keywords

Keywords

performance evaluation; complaint dismissed

Consideration 3

Extract:

The role of the Tribunal in challenges to the assessment of the performance of staff of international organisations is a limited one and does not involve reassessment of performance by the Tribunal (see, for example, Judgments 3228, consideration 3, and 3692, consideration 8).

Reference(s)

ILOAT Judgment(s): 3228, 3692

Keywords

performance evaluation

Considerations 7-8

Extract:

Allied to these arguments is an argument of the EPO that the complainant is limited as to the subject matter he can challenge having regard to the fact that Article 110a of the Service Regulations introduced by CA/D 10/14 and Circular No. 366 are general decisions which are not amenable to challenge unless and until a decision is made detrimentally affecting the complainant.
The last-mentioned argument of the EPO is founded on settled case law. The EPO cites Judgment 3291, consideration 8. A more recent illustration is Judgment 4075, consideration 4. However in the present case Article 110a of the Service Regulations introduced by CA/D 10/14 and Circular No. 366 have been applied in an individual decision affecting the complainant, namely the application of the new procedures to the review of his grievances about the terms of the 2014 staff report and the involvement in its preparation of individuals he alleges were not impartial. Accordingly, the complainant can challenge the lawfulness of those general decisions.

Reference(s)

ILOAT Judgment(s): 3291, 4075

Keywords

general decision; cause of action; performance evaluation

Consideration 11

Extract:

As the Tribunal observed in Judgment 2315, consideration 23, in general terms, a provision is retroactive if it effects some change in existing legal status, rights, liabilities or interests from a date prior to its proclamation, but not if it merely affects the procedures to be observed in the future with respect to such status, rights, liabilities or interests.

Reference(s)

ILOAT Judgment(s): 2315

Keywords

retroactivity

Consideration 12

Extract:

The second [argument] is that the grievance cannot be further pursued by way of internal appeal. As to this second point, the Tribunal has repeatedly spoken of the desirability of effective internal appeal mechanisms (see Judgment 3732, consideration 2, and the cases cited therein). However the Tribunal has not said it is mandatory and a precondition to the exercise of jurisdiction by the Tribunal in relation to final decisions that all such decisions are subject to internal appeal.

Reference(s)

ILOAT Judgment(s): 3732

Keywords

internal appeal

Consideration 13

Extract:

As the Tribunal has said in relation to its own role, the assessment of an employee’s merit during a specified period involves a value judgement (see, for example, Judgment 3692 [...]). By parity of reasoning, it would be reasonable for an organisation to adopt an approach that individuals (such as those comprising the Appraisals Committee) reviewing a staff report prepared by a staff member’s supervisor involving value judgements would not be as well-placed to make the same value judgements but, in order to guard against abuses of the process, would have authority to assess whether the report was arbitrary or discriminatory. And while staff would understandably prefer the membership of the Appraisals Committee to include staff representation and not be limited to management, the fact that it is so limited does not render its constitution in this way, unlawful.

Reference(s)

ILOAT Judgment(s): 3692

Keywords

performance evaluation

Consideration 14

Extract:

[I]t is settled case law that the amendment of a provision governing an official’s situation to her or his detriment constitutes a breach of acquired rights when such an amendment adversely affects the balance of contractual obligations, or alters fundamental terms of employment in consideration of which the official accepted the appointment. The amendment to the applicable text must relate to a fundamental and essential term of employment (see, for example, Judgment 4028, consideration 13).

Reference(s)

ILOAT Judgment(s): 4028

Keywords

acquired right

Consideration 17

Extract:

If an official involved in the preparation of a staff report is not impartial and that can be demonstrated by prior conduct, the fact that the conduct took place some years earlier does not render that prior conduct irrelevant when assessing partiality. Partiality is not necessarily periodic or episodic and can be enduring. In addition, it may be doubted that the Appraisals Committee could, without investigating the matter itself, simply rely on a short letter from management to satisfactorily deal with the question of partiality.

Keywords

performance evaluation; impartiality

Consideration 19

Extract:

The substance of the relief sought concerning the 2014 staff report is that it be set aside and removed from the complainant’s personal file. That has already happened, but well after the complaint was filed, by administrative action. No orders to this effect need be made. However the complainant has succeeded in the sense that some of his arguments have been accepted. Accordingly he is entitled to his costs. In the unusual circumstances of this case, the complaint should be dismissed but an order for costs made in favour of the complainant.

Keywords

costs; claim moot



 
Last updated: 20.05.2020 ^ top