Jugement n° 4916
Décision
1. The impugned decision and the earlier decision of 31 October 2020 are set aside.
2. The complainant’s 29 October 2020 Performance Appraisal Report is annulled.
3. The organisation shall pay the complainant material damages in the amount of 30,000 euros.
4. It shall pay her moral damages in the amount of 10,000 euros.
5. It shall also pay her costs in the amount of 10,000 euros.
6. All other claims are dismissed.
Synthèse
The complainant contests her Performance Appraisal Report for the period from 1 November 2019 to 31 October 2020 and the decision not to renew her appointment due to unsatisfactory performance and loss of trust.
Mots-clés du jugement
Mots-clés
Requête admise; Témoignage; Rapport d'appréciation; Non-renouvellement de contrat; Erreur de droit; Evaluation; Témoin; Violation du principe de confidentialité; Performance
Considérant 2
Extrait:
The complainant appears to request oral proceedings, as she lists Mr K., the former Head of the Investment Unit, as a witness. This request is rejected, as the Tribunal considers the written submissions and the evidence produced by the parties to be sufficiently clear and detailed to enable it to render an informed decision.
Mots-clés
Débat oral
Considérant 4
Extrait:
It must be recalled that the Tribunal has consistently held that a decision not to renew the appointment of a staff member of an international organisation lies within the discretion of its executive head and is therefore subject to only limited review. It may be set aside only if it was taken without authority, or in breach of a rule of form or of procedure, or was based on a mistake of fact or of law, or if some essential fact was overlooked, or if clearly mistaken conclusions were drawn from the facts, or if there was abuse of authority (see, for example, Judgment 4654, consideration 16). However, under the Tribunal’s case law applicable to contractual relationships generally, a decision not to renew a contract must be based on objective, valid reasons, and not on arbitrary or irrational ones (see, for example, Judgments 4495, consideration 15, 3769, consideration 7, 3353, consideration 15, and 1128, consideration 2).
Référence(s)
ILOAT Judgment(s): 1128, 3353, 3769, 4495, 4654
Mots-clés
Obligation de motiver une décision; Non-renouvellement de contrat; Contrôle du Tribunal; Pouvoir d'appréciation; Chef exécutif; Limites
Considérant 4
Extrait:
The Tribunal also recalls its well-established case law regarding its limited power of review of decisions relating to performance evaluations. As stated in Judgment 4267, consideration 4, “assessment of merit is an exercise that involves a value judgement, signifying that persons may quite reasonably hold different views on the matter in issue. Moreover, because of the nature of a value judgement, the grounds on which a decision involving a judgement of that kind may be reviewed are limited to those applicable to discretionary decisions. Thus, the Tribunal will only interfere if the decision was taken without authority, if it was based on an error of law or fact, a material fact was overlooked, or a plainly wrong conclusion was drawn from the facts, if it was taken in breach of a rule of form or procedure, or if there was an abuse of authority (see, for example, Judgments 3006, consideration 7, and 3062, consideration 3) [...]”.
Référence(s)
ILOAT Judgment(s): 3006, 3062, 4267
Mots-clés
Rapport d'appréciation; Contrôle du Tribunal; Limites; Evaluation; Performance
Considérant 6
Extrait:
The complainant correctly points out that there was a violation of the confidentiality of her testimony before the Advisory Board. The rationale behind this confidentiality, as foreseen by Rule 25.2, paragraphs (f) and (g), of the Staff Manual, is not only to protect witnesses’ personal data, but also to ensure that their testimonies remain confidential and that they are neither used against them nor have a negative impact on them, so that witnesses can speak freely without fear of reprisal or retaliation. The Secretary-General improperly used the complainant’s confidential testimony in Advisory Board proceedings concerning an entirely different matter as a basis to assess her performance. This was an error of law. Even if Rule 25.2, paragraphs (f) and (g), of the Staff Manual did not directly apply to the Secretary-General, the latter was bound by the general principle of confidentiality underlying this rule.
Mots-clés
Témoignage; Erreur de droit; Témoin; Violation du principe de confidentialité; Confidentialité
Considérant 7
Extrait:
The complainant […] seeks the annulment of her 29 October 2020 [Performance Appraisal Report – PAR], covering the period from 1 November 2019 to 31 October 2020, and the re-opening of the performance appraisal procedure for that period to correct the substantive and procedural errors committed in her PAR. However, given the time that has elapsed since the complainant’s separation from the organisation, the Tribunal finds no useful purpose to order the re-opening of the performance appraisal procedure for the aforementioned period.
As the complainant has established that her 29 October 2020 PAR and the resulting decision not to renew her appointment were tainted by an error of law, […] the complainant’s 29 October 2020 PAR must be annulled.
Mots-clés
Annulation de la décision; Rapport d'appréciation; Non-renouvellement de contrat; Erreur de droit; Evaluation; Performance
Considérant 8
Extrait:
The complainant seeks material damages equivalent to the remuneration, including benefits and allowances, she would have received had her contract been renewed for one year. It should be noted that the complainant held a temporary appointment which, according to its terms and the Tribunal’s case law, carried no expectation of renewal (see, for example, Judgments 4588, consideration 19, 4587, consideration 19, 4462, consideration 18, 3580, consideration 6, and 3448, consideration 7). Even if the complainant’s 2020 PAR had been properly conducted and there was no flaw in the procedure, there is no guarantee that it would have resulted in a favourable outcome for the renewal of her appointment. However, since the complainant lost a valuable opportunity to have her contract renewed, she is entitled to material damages, which the Tribunal assesses in the amount of 30,000 euros.
Référence(s)
ILOAT Judgment(s): 3448, 3580, 4462, 4587, 4588
Mots-clés
Rapport d'appréciation; Non-renouvellement de contrat; Erreur de droit; Perte de chance; Dommages-intérêts pour tort matériel
Considérant 9
Extrait:
As the complainant has established moral injury occasioned by the negative appraisal of her performance in her 2020 PAR and the resulting recommendation not to renew her appointment, she is also entitled to 10,000 euros in moral damages, as per her claim.
Mots-clés
Tort moral; Rapport d'appréciation; Erreur de fait; Evaluation; Indemnité pour tort moral
Considérant 10
Extrait:
The complainant’s claim to be awarded any other relief the Tribunal deems just and necessary is too vague to be receivable (see, for example, Judgment 4719, consideration 7).
Référence(s)
ILOAT Judgment(s): 4719
Mots-clés
Conclusion vague
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