Judgment No. 4891
Decision
The complaint is dismissed.
Summary
The complainant challenges his staff report for 2004-2005.
Judgment keywords
Keywords
performance report; rating; complaint dismissed
Consideration 4
Extract:
Before considering the complainant’s arguments, the Tribunal finds it convenient to recall the following statement that it made in Judgment 4795, consideration 9, concerning the limited power of review that it exercises in matters of staff appraisals:
“[...] As the Tribunal has repeatedly held in its case law, assessment of an employee’s merits during a specified period involves a value judgement; for this reason, the Tribunal must recognise the discretionary authority of the bodies responsible for conducting such an assessment. Of course, it must ascertain whether the ratings given to the employee have been determined in full conformity with the rules, but it cannot substitute its own opinion for the assessment made by these bodies of the qualities, performance and conduct of the person concerned. The Tribunal will therefore intervene only if the staff report was drawn up without authority or in breach of a rule of form or procedure, if it was based on an error of law or fact, if a material fact was overlooked, if a plainly wrong conclusion was drawn from the facts, or if there was abuse of authority (see, for example, Judgments 4564, consideration 3, 4267, consideration 4, 3692, consideration 8, 3228, consideration 3, and 3062, consideration 3).”
In other words, given that the staff report calls for a value judgement and the exercise of a discretionary power by the responsible bodies of the Organisation, the complainant must convince the Tribunal that the EPO breached a procedural requirement, that the staff report was made without authority or by an incompetent authority, or resulted from an abuse of authority, that a manifest error of law or fact was made, or that clearly wrong conclusions were reached from the record or from the overlook of material facts (see also Judgments 4731, consideration 4, and 4713, consideration 11).
Reference(s)
ILOAT Judgment(s): 4713, 4731, 4795
Keywords
performance report; rating; judicial review; performance evaluation; role of the tribunal
Consideration 11
Extract:
On conflict of interest, in Judgment 4711, consideration 5, the Tribunal recalled as follows its case law on this issue:
“[...] it is a general rule of law that an official who is called upon to take a decision affecting the rights or duties of other persons subject to her or his jurisdiction must withdraw in cases in which her or his impartiality may be open to question on reasonable grounds. It is immaterial that, subjectively, the official may consider herself or himself able to take an unprejudiced decision; nor is it enough for the persons affected by the decision to suspect its author of prejudice (see Judgments 4240, consideration 10, and 3958, consideration 11). A conflict of interest occurs in situations where a reasonable person would not exclude partiality, that is, a situation that gives rise to an objective partiality. Even the mere appearance of partiality, based on facts or situations, gives rise to a conflict of interest (see Judgment 3958, consideration 11). However, an allegation of conflict of interest or lack of impartiality has to be substantiated and based on specific facts, not on mere suspicions or hypotheses. The complainant bears the burden of proof of conflict of interest (see Judgments 4617, consideration 9, and 4616, consideration 6) [...]”
On the one hand, the Tribunal considers that the situation to which the complainant pointed does not give rise to an objective partiality. On the other hand, as an allegation of conflict of interest or lack of impartiality must be substantiated and based on specific facts, raising it, as the complainant does, based on mere suspicion or hypothesis, is clearly insufficient.
Reference(s)
ILOAT Judgment(s): 3958, 4616, 4617, 4711
Keywords
conflict of interest
Consideration 12
Extract:
With respect to his third argument to the effect that there was an absence of objective evaluation since the staff report included subjective, arbitrary and personal elements going beyond the reporting officer’s discretionary power, the complainant has simply not discharged his burden of providing evidence of sufficient quality and weight to persuade the Tribunal that his allegations of bias or partiality were well founded (see, for example, Judgments 4713, consideration 12, 4543, consideration 8, and 3380, consideration 9). The complainant cannot point to any precise indication of bias within the staff report. The comments of the reporting officer indeed point in the opposite direction and include many that praised the complainant’s performance when appropriate.
Reference(s)
ILOAT Judgment(s): 3380, 4543, 4713
Keywords
burden of proof; bias
Consideration 13
Extract:
[I]n Judgment 4564, consideration 6, the Tribunal observed that a staff report “is an entirely separate document from previous staff reports [and that] a staff member cannot reasonably expect that favourable ratings that may previously have been awarded to her or him will automatically be maintained” (see also Judgment 1688, consideration 6).
Reference(s)
ILOAT Judgment(s): 1688, 4564
Keywords
performance report; rating
Consideration 17
Extract:
The Tribunal has long recognized that “international civil servants are entitled to expect that their cases will be considered by internal appeal bodies within a reasonable timeframe and that failure to comply with this requirement of expeditious proceedings constitutes a failing on the part of the employer organisation” (see Judgments 4655, consideration 21, 3510, consideration 24, and 2116, consideration 11). An organisation is indeed expected to process internal appeals with the requisite promptness and diligence, and it has a positive obligation to see to it that such procedures move forward with reasonable speed (see, for example, Judgments 4173, consideration 12, and 3755, consideration 15).
Under the Tribunal’s case law, the amount of compensation for unreasonable delay is ordinarily influenced by two considerations, one being the length of the delay and the other the effect of the delay (see, for example, Judgments 4655, consideration 21, and 3160, consideration 17). In Judgment 4799, consideration 7, the Tribunal recalled that its recent case law holds that an unreasonable delay in an internal appeal is not sufficient in itself to award moral damages. The complainant must also articulate the adverse effects which the delay has caused (see also Judgment 4563, consideration 14). Furthermore, the Tribunal has regularly stated that, in terms of damages, a complainant seeking compensation must provide clear evidence of the alleged unlawful act, of the injury suffered and of the causal link between the unlawful act and the injury, and that she or he bears the burden of proof in this regard (see Judgments 4556, consideration 12, 4158, consideration 4, 4157, consideration 7, and 4156, consideration 5).
However, the complainant has failed to provide any persuasive evidence of the moral injury stemming from the delay notwithstanding it was over five years and was unreasonable.
Reference(s)
ILOAT Judgment(s): 2116, 3160, 3510, 3755, 4157, 4158, 4173, 4556, 4563, 4655, 4799
Keywords
moral injury; burden of proof; delay in internal procedure
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