Judgment No. 4507
The complaint is dismissed.
The complainant impugns the decision not to renew his fixed-term appointment.
fixed-term; non-renewal of contract; complaint dismissed; senior official
According to the Tribunal’s case law, the reasons given by the internal appeal body must respond to all the issues raised by the appellant, and therefore must be complete in substance (see Judgment 4063, consideration 5). However, it is neither unlawful nor inappropriate that the reasons given by the internal appeal body are succinct (see Judgment 4165, consideration 8), provided that they are adequate. The Tribunal notes that the Appeals Council declared in its report that it had examined all the relevant documents and submissions of the parties, and referred to all relevant facts. The conclusions in the report, articulated in four bullet points, are adequate despite their brevity and address all the issues raised by the complainant.
ILOAT Judgment(s): 4063, 4165
report of the internal appeals body
It is well settled in the Tribunal’s case law that an organisation enjoys wide discretion in deciding whether or not to renew a fixed-term appointment. The exercise of such discretion is subject to only limited review as the Tribunal will respect the organisation’s freedom to determine its own requirements and the career prospects of staff. However, the exercise of such discretion is not unfettered and the Tribunal will set the decision aside if it was taken without authority, or in breach of a rule of form or of procedure, or if it rested on an error of fact or of law, or if some essential fact was overlooked, or if there was abuse of authority, or if clearly mistaken conclusions were drawn from the evidence (see Judgments 3948, consideration 2, 4062, consideration 6, 4146, consideration 3, 4231, consideration 3, and 4363, consideration 10).
These grounds of review are applicable notwithstanding that the Tribunal has consistently stated that an employee who is in the service of an international organisation on a fixed-term contract does not have a right to the renewal of the contract when it expires and the complainant’s terms of appointment contain a similar provision (see Judgments 3444, consideration 3, 3586, consideration 6, and 4218, consideration 2).
ILOAT Judgment(s): 3444, 3586, 3948, 4062, 4146, 4218, 4231, 4363
fixed-term; non-renewal of contract; discretion; role of the tribunal
The complainant alleges that the non-extension decision was tainted by an error of fact since it was taken on the assumption that his employment was the result of a “direct political appointment” by the former Director-General whereas, in reality, he was selected for the position of Director, ICA, by means of a competitive process following the publication of the open vacancy for said position to all African delegations.
The Tribunal finds, on the basis of the relevant evidence provided by the Organisation, that the appointment of the complainant in 2016 was a direct political appointment.
Contrary to the complainant’s assertion, the selection process was not preceded by the publication of a vacancy notice open to any potential candidates. The process was initiated by a letter of 9 September 2015, addressed by the then OPCW Director-General to the Permanent Representative of the Republic of South Africa to the OPCW, in which the Director-General stated that:
– the position of the Director, ICA, which was then occupied by a staff member from South Africa, would soon become vacant;
– he intended to appoint a suitable candidate from the African region to this position;
– he therefore requested the Permanent Representative of the Republic of South Africa to “inform [his] regional group to seek names of suitable candidates”;
– “[t]he candidacies [could] be submitted directly to [him] with their CVs by 15 October 2015.
Following interviews that [he would] conduct, [he would] appoint the new Director ICA”.
The process, as described in this letter, was not a competitive process since there was no vacancy notice open to public competition, but only one which would enable the OPCW Director-General to select directly the suitable candidate.
Moreover, this process did not comply with either Staff Regulation 4.3, which required that selection of staff be made on a competitive basis, or Administrative Directive AD/PER/29/Rev.3, in force at the material time, whose paragraph 7 required, even for appointments to posts at the D-2 level and above, that they be based on “recruitment and selection procedures”. The Tribunal’s case law holds that the consultation with “relevant delegation and regional groups” – as made in the instant case – did not satisfy paragraph 7 of the Directive (see Judgment 4069, consideration 6).
In conclusion, the non-extension decision was not tainted by an error of fact.
ILOAT Judgment(s): 4069
appointment without competition