Judgment No. 4603
- Organization: Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO PrepCom)
- Date: 01.02.2023
- Original: English
- Judges: Moore, Rawlins, De Nictolis
- Full judgment text - Full judgment text (french)
1. The impugned decision, dated 8 October 2018, is set aside.
2. The Commission shall pay the complainant material damages in the amount of 30,000 euros.
3. The Commission shall also pay the complainant 1,000 euros in costs.
4. All other claims are dismissed.
The complainant challenges the decision not to extend his fixed-term appointment on account of his unsatisfactory performance.
complaint allowed; fixed-term; non-renewal of contract; performance evaluation
Consistent case law has it that a decision not to extend or renew a fixed-term appointment is discretionary and may be set aside only on limited grounds. Where the reason given for the non-renewal is unsatisfactory performance, the decision can be successfully impugned if it is fundamentally flawed, for example, by procedural defects, a failure to take account of some essential fact, abuse or misuse of authority, or if it was based on an error of fact or of law (see Judgment 3743, under 2). The Tribunal has also consistently held that ďan organisation cannot base an adverse decision on a staff memberís unsatisfactory performance if it has not complied with the rules established to evaluate that performanceĒ (see Judgment 3932, under 21). The Tribunal has also stated that if the reason given for the non-renewal of a fixed-term contract is the unsatisfactory nature of the performance of the staff member concerned, who is entitled to be informed in a timely manner as to the unsatisfactory aspects of his or her service, the organisation must base its decision on an assessment of that personís work carried out in compliance with previously established rules and that allied to this is an obligation to afford an opportunity to improve (see Judgment 4289, under 7, and the case law cited therein) and that an international organization must comply with its own procedures in relation to performance appraisals (see, for example, Judgment 3150, under 9).
ILOAT Judgment(s): 3150, 3743, 3932, 4289
fixed-term; non-renewal of contract; discretion; performance evaluation
The first [procedural issue] is the complainantís request for an oral hearing. In view of the ample and sufficiently clear written submissions and evidence provided by the parties, the Tribunal considers that it is fully informed about the case to make a decision on the issues raised for consideration in the complaint. It will not therefore grant this request.
To the extent that the complainant raises questions concerning human rights violations allegedly committed by the Austrian authorities and matters relating to his family circumstances, those questions relate to private rather than work-related matters and are not concerned with the non-observance of the complainantís terms of appointment. Pursuant to paragraph 5 of Article II of the Tribunalís Statute, they are not within the competence of the Tribunal.
competence of tribunal; host state; ratione materiae; private life
Inasmuch as the complainant has not articulated, with any degree of particularity, the specific effects which the unlawful decision has had upon him, divorced from his personal circumstances more generally, the Tribunal will not award him the moral damages that he claims.
As the complainant has provided no evidence or analysis to demonstrate that there was bias, ill will, malice, bad faith or other improper purpose on which to base an award of exemplary damages (see, for example, Judgment 4181, under 11), his claim for such damages will be dismissed.
ILOAT Judgment(s): 4181