Judgment No. 4481
1. The impugned decision of 5 November 2019 is set aside.
2. The ILO shall pay the complainant material damages in the amount of 5,000 United States dollars.
3. The ILO shall also pay the complainant moral damages in the amount of 5,000 United States dollars, subtracting therefrom the 3,000 dollars she was awarded in the impugned decision, if already paid.
4. The ILO shall pay the complainant costs in the amount of 1,000 United States dollars.
5. All other claims are dismissed.
The complainant contests the decision not to extend her appointment at the end of her period of probation.
complaint allowed; probationary period
According to the Tribunalís case law, the decision not to confirm the appointment of a probationer is a discretionary one and is subject to limited review. The Tribunal will set the decision aside only if it was taken without authority, or in breach of a rule of form or of procedure, or was based on a mistake of fact or of law, or overlooked some essential fact, or amounted to an abuse of authority, or clearly mistaken conclusions were drawn from the facts. The case law also states that the decision not to confirm a probationerís appointment may be set aside if it was made in breach of her or his contract, of the organizationís own regulations and rules, or of applicable general principles of law as enunciated by the Tribunal. It also states that the general principles are intended to ensure that an international organization acts in good faith and honours its duty of care towards probationers and to respect their dignity (see, for example, Judgment 3440, consideration 2).
Regarding the ambit of the discretion to confirm the appointment of a probationer, the Tribunalís case law states that the competent authority will determine on the evidence before it whether or not to confirm the appointment and must be allowed the utmost measure of discretion in deciding whether someone it has recruited shows, not just the professional qualifications, but also the personal attributes for the particular post in which she or he will be working. Only where the Tribunal finds the most serious or glaring flaw in the exercise of the Director-Generalís discretion will it interfere (see, for example, Judgment 2599, consideration 5). The Tribunal also recalled, for example, in Judgment 4282, consideration 2, that the reason for probation is to enable an organisation to assess the probationerís suitability for a position. For this reason, it has recognised that a high degree of deference ought to be accorded to an organisationís exercise of its discretion regarding decisions concerning probationary matters, including the confirmation of appointment, the extensions of a probationary term, and the identification of its own interests and requirements.
ILOAT Judgment(s): 2599, 3440, 4282
probationary period; discretion
[T]he Tribunalís case law [Ö] requires an international organization to comply with its own procedures that govern performance appraisals. Accordingly, the following was stated in Judgment 2414, consideration 24:
ďThe fundamental considerations which lead to the conclusion that an organisation must comply with the rules which it has established also dictate the conclusion that it cannot base an adverse decision on a staff memberís unsatisfactory performance if it has not complied with the rules established to evaluate that performance. Just as the decisions to withhold the complainantís salary increments could not be justified on the basis of her unsatisfactory performance because the relevant rules had not been complied with, so also, for the same reason, the decisions neither to convert nor renew her contract cannot be justified on that basis.Ē
ILOAT Judgment(s): 2414
patere legem; performance evaluation
[T]he complainant asks the Tribunal to order the ILO to reintegrate her and to extend her contract as of 1 July 2018 to cover any period of certified sick leave, to which she may have been entitled, and to allow her to return to work and complete her period of probation once she is certified fit to work. However, having regard to the time that has passed since the complainant separated from service and the fact that it cannot be said with certainty that her appointment would have been confirmed but for the irregularities noted above, the Tribunal considers that it is not appropriate to order the reinstatement that the complainant seeks. The complainant was aware that the probation period was intended to assess her suitability for her post and that her appointment was on a trial basis.
The complainant is [Ö] entitled to material damages for the loss of an opportunity to have her appointment confirmed and contract extended. For this she will be awarded 5,000 United States dollars.
material injury; loss of opportunity