Judgment No. 4495
1. The GCF shall pay the complainant 15,000 euros moral damages.
2. The GCF shall pay the complainant 5,000 euros costs.
3. The complaints are otherwise dismissed.
The complainant challenges the decision not to renew her fixed-term appointment upon its expiry.
complaint allowed; fixed-term; non-renewal of contract
The circumstances of this case are somewhat unusual. It is not a case in which the question of whether a senior official’s contract should be renewed or extended was being addressed against a background of stability in the most senior ranks of the organisation with settled policies including HR policies. In the present case there was a new Executive Director appointed shortly before a decision had to be made about the extension of the complainant’s contract. He was plainly focused on, amongst other things, the functioning of the HR Unit and its Head as part of his vision for the future of the organisation informed by external advice. In this respect, the answer to the question of whether the complainant’s contract should be renewed could reasonably be influenced by that vision and the views of the new Executive Director about how it might best be achieved, including his assessment of the suitability of the complainant informed by advice he had received. A substantial part of the complainant’s case is, in substance, that she was qualified to continue in the role as Head of HR even in the face of the new vision (while challenging whether in truth it was new) including demonstrating that she had the qualifications, skills and experience required of the position as set out in a vacancy notice […]. But this line of argument and analysis effectively invites the Tribunal to enter the territory which it has eschewed, namely substituting its own assessment for that of the organisation.
non-renewal of contract; role of the tribunal; senior official
The obligation to give reasons for a non-renewal have been variously described as providing “valid reasons” (see Judgment 3769, consideration 7), and not “arbitrary or irrational” reasons (see Judgment 1128, consideration 2). While the reasons given in this case may be contestable, they were not of a character to sustain a conclusion they were, for example, not valid or arbitrary or irrational. As the Tribunal observed in Judgment 3586, consideration 6: “the Tribunal’s scope of review in a case such as this is limited. Firm and consistent precedent has it that an organization enjoys wide discretion in deciding whether or not to extend a fixed-term appointment. The exercise of such discretion is subject to limited review because the Tribunal respects an organization’s freedom to determine its own requirements and the career prospects of staff (see, for example, Judgment 1349, under 11). The Tribunal will not substitute its own assessment for that of the organization. A decision in the exercise of this discretion may only be quashed or set aside for unlawfulness or illegality in the sense that it was taken in breach of a rule of form or procedure; or if it is based on an error of fact or of law, if some essential fact was overlooked; or if there was an abuse or misuse of authority; or if clearly mistaken conclusions were drawn from the evidence (see, for example, Judgments 3299, under 6, 2861, under 83, and 2850, under 6).”
ILOAT Judgment(s): 1128, 1349, 2850, 2861, 3299, 3586, 3769
fixed-term; non-renewal of contract; discretion; motivation; role of the tribunal