Judgment No. 3866
1. The 20 December 2013 decision is set aside.
2. The Global Fund shall remove all adverse material from the complainant’s personnel file.
3. The Global Fund shall pay the complainant damages in the total amount of 40,000 euros.
4. The Global Fund shall pay the complainant costs in the amount of 1,000 euros.
5. All other claims are dismissed.
The complainant impugns the decision not to confirm her appointment at the end of her probationary period.
complaint allowed; decision quashed; probationary period; termination of employment
The Global Fund acknowledges that objectives were not established at the start of the complainant’s employment but points to other considerations in an attempt to overcome this requirement. It points, in particular, to the fact that the complainant was a consultant with the Global Fund immediately prior to her appointment. This consideration is irrelevant and ignores the fact that at the time of the appointment there was a material change in the complainant’s status. It cannot be assumed that the duties, the responsibilities and reporting requirements would remain the same. The Global Fund’s position also disregards the fact that not only did the complainant become an employee but an employee on probation. The documents and information the Global Fund identifies, including the vacancy notice, are general in nature and do not identify the complainant’s objectives that served as a yardstick to measure performance. Additionally, the fact that the performance objectives setting only occurs for all staff members at a particular time does not absolve the Global Fund from its obligation to set the objectives at the start of the probationary period.
The Appeal Board’s finding that there was no flaw because there were no provisions in the Employee Handbook fails to have regard to the well-settled case law that a probationer must be given a timely warning that her or his employment is in jeopardy.
case law; probationary period
[A] warning that would be given at a meeting at which other colleagues were present would constitute a serious breach of the obligation to treat an employee with dignity and respect.
duty of care
It is for the organization to objectively assess the professional performance and behaviour of its employee. Seeking the views of colleagues undermines the objectivity of the assessment. It also shows a lack of respect for the concerned employee and it is humiliating for her or him to know that colleagues are being asked to assess her or his performance and behaviour.
performance report; humiliation