Judgment No. 4382
The complaint is dismissed.
The complainant challenges the Secretary General’s decisions to set aside her 2016 performance appraisal only on the basis that it was procedurally flawed, and to insert in her personnel file the impugned decision and the report of the Appeals Commission.
personal file; performance evaluation; complaint dismissed
On the complaint form, the complainant ticked the box which indicates that she wants oral proceedings, as well as the other one which indicates that she does not. Oral proceedings will not be ordered inasmuch as the Tribunal is sufficiently informed of all aspects of the case to consider it fully on the material which the parties provide in the present proceedings.
The complainant’s requests for the removal of the Appeals Commission’s report and the impugned decision from her personnel file and to be issued with the certificate are rejected. There is no legal basis for the issue of such a certificate. The Appeals Commission’s report and the impugned decision are essential parts of her personnel history which are properly included in her personnel file.
personal file; certificate of service
It is well settled that the complainant bears the burden of proving allegations of bias and that, moreover, the evidence adduced to prove the allegations must be of sufficient quality and weight to persuade the Tribunal. It is also recognized that bias is often concealed and that direct evidence to support the allegation may not be available. In these cases, proof may rest on inferences drawn from the circumstances. However, reasonable inferences can only be drawn from known facts and cannot be based on suspicion or unsupported allegations (see, for example, Judgments 2472, under 9, 3380, under 9, and 4097, under 14).
With regard to prejudice, the Tribunal has stated that although evidence of personal prejudice is often concealed and such prejudice must be inferred from surrounding circumstances, that does not relieve the complainant, who has the burden of proving her or his allegations, from introducing evidence of sufficient quality and weight to persuade the Tribunal. Mere suspicion and unsupported allegations are clearly not enough, the less so where the actions of the organization which are alleged to have been tainted by personal prejudice are shown to have a verifiable objective justification (see, for example, Judgment 3912, under 13). The Tribunal has also stated, in the context of alleged inaccuracies in a staff report, that it is not sufficient to consider in relation to each inaccuracy whether it, standing alone, was an abuse of authority. Rather, it is necessary to consider whether, in the light of the evidence, including the various inaccuracies which it identified, the report as a whole was the result of prejudice on the part of the reporting officer (see, for example, Judgment 2930, under 3).
Jugement(s) TAOIT: 2472, 2930, 3380, 3912, 4097
bias; performance evaluation; prejudice
The Tribunal’s consistent precedent states that the principle of equal treatment requires, on the one hand, that officials in identical or similar situations be subject to the same rules and, on the other, that officials in dissimilar situations be governed by different rules defined so as to take account of this dissimilarity (see, for example, Judgment 4157, under 13).
Jugement(s) TAOIT: 4157
The Tribunal has observed that in order for there to be misuse of authority, it must be established that the decision rested on considerations extraneous to the organisation’s interests and that the staff member alleging abuse of authority bears the burden of establishing the improper purpose for which the authority was exercised (see, for example, Judgment 4146, under 10).
Jugement(s) TAOIT: 4146
misuse of authority; abuse of power