Judgment No. 4383
1. The impugned decision of 21 January 2019 is set aside to the extent mentioned in consideration 11 of this judgment.
2. The Federation shall pay the complainant moral damages in the amount of 15,000 Swiss francs.
3. The Federation shall remove the PIP from the complainant’s personnel file.
4. The Federation shall also pay the complainant costs in the amount of 4,000 Swiss francs.
5. All other claims are dismissed.
The complainant challenges the decision to impose on her a performance improvement plan (PIP).
complaint allowed; performance evaluation
The complainant requests oral proceedings in this case. Oral proceedings will not be ordered inasmuch as the Tribunal is sufficiently informed of all aspects of the case to consider it fully on the voluminous materials and detailed submissions which the parties provide in these proceedings.
[The Administration violated its own procedural rules for the establishment of the subject PIP.] The Federation will […] be ordered to remove the PIP from the complainant’s personnel file.
personal file; performance evaluation
In Judgment 4231, under 10, citing Judgment 2745, under 13, for example, the Tribunal stated that constructive dismissal signifies that an organisation has breached the terms of a staff member’s contract in such a way as to indicate that it will no longer be bound by that contract. A staff member may treat that as constituting constructive dismissal with all the legal consequences that flow from an unlawful termination of the contract, even if she or he has resigned. In Judgment 2435, under 17, the Tribunal stated that the notion of constructive dismissal is a convenient expression to indicate that an employer has acted in a manner inconsistent with the further maintenance of the employment relationship entitling the employee, if she or he so elects, to treat the employer’s actions as terminating the employment. In the event that the employee so elects – usually by tendering her or his resignation – consequential rights and obligations are determined on the basis that it was the employer, not the employee, who terminated the employment.
ILOAT Judgment(s): 2435, 2745, 4231
The complainant provides no evidence that there was any other staff member who was in an identical or similar situation and who was treated dissimilarly (see, for example, Judgment 4157, under 13, and the case law cited therein).
ILOAT Judgment(s): 4157