Judgment No. 4282
1. The impugned decision of 3 July 2018 is set aside, as is the Director General’s earlier decision of 30 August 2017.
2. Eurocontrol shall pay the complainant material damages in the amount of 25,000 euros, deducting therefrom any sums that he was paid under Article 7 of the Conditions of Employment of Contract Staff.
3. Eurocontrol shall pay the complainant moral damages in the amount of 20,000 euros.
4. Eurocontrol shall destroy the appraisals and reports, whether electronic data or otherwise, generated by the complainant’s line manager or created at the Directorate of Human Resources.
5. Eurocontrol shall pay the complainant 750 euros in costs.
6. All other claims are dismissed.
The complainant challenges the decision to terminate his appointment at the end of his probationary period.
complaint allowed; probationary period
It is useful to recall the general principles that govern setting aside a decision to dismiss a staff member of an international organization whose performance during a probationary period is considered inadequate. It was relevantly restated in consideration 4 of Judgment 4212 that the purpose of probation is to permit an organization to assess the probationer’s suitability for a position, and, for that reason, the Tribunal has consistently recognized that a high degree of deference ought to be accorded to an organisation’s exercise of its discretion regarding decisions concerning probationary matters. This includes the confirmation of appointment, the extensions of a probationary term, and the identification of its own interests and requirements. Accordingly, it has been consistently stated that a discretionary decision of this nature will only be set aside “if taken without authority or in breach of a rule of form or of procedure, or if based on a mistake of fact or of law, or if some essential fact was overlooked, or if clearly mistaken conclusions were drawn from the facts, or if there was abuse of authority”. In Judgment 4212, the Tribunal also reaffirmed that “where the reason for refusal of confirmation is unsatisfactory performance, [it] will not replace the organisation’s assessment with its own”.
It is also useful to reiterate an international organization’s obligations regarding a staff member’s probation period that are well settled in the case law. For example, in Judgment 4212, consideration 5, the Tribunal stated that such a period is to provide an organisation with an opportunity to assess an individual’s suitability for a position. In the course of making this assessment, an organisation must establish clear objectives against which performance will be assessed; provide the necessary guidance for the performance of the duties; identify in a timely fashion the unsatisfactory aspects of the performance so that remedial steps may be taken; and give a specific warning where continued employment is in jeopardy. It was also stated in Judgment 3678, consideration 1, that a probationer is “entitled to have objectives set in advance so that she or he will know the yardstick by which future performance will be assessed”.
ILOAT Judgment(s): 3678, 4212
probationary period; discretion; performance evaluation