Judgment No. 2599
Decision
1. The decision of 29 September 2005 is quashed.
2. ESO shall pay the complainant compensation equivalent to 12 months' salary, less the amounts already paid as unemployment benefit.
3. It shall also pay her the sum of 3,000 euros in costs.
Consideration 6
Extract:
"The Tribunal notes that there is no evidence to prove that the complainant was given any kind of access to the report on which the Director General is said to have based her decision to dismiss her.
It may be concluded from the above and from the evidence in the file that the impugned decision was taken in breach of the safeguards regarding the provision of proper conditions for probation, resulting from the rules and regulations, from general principles of law and from the Tribunal's case law, and, in particular, in breach of the complainant's right to be heard.
The impugned decision must therefore be quashed."
Keywords
grounds; report; case law; general principle; right to reply; due process; organisation's duties; duty to inform; breach; probationary period; termination of employment; safeguard
Consideration 5
Extract:
According to the Tribunal’s case law, to which the Observatory itself refers, the Director General’s decision not to confirm the appointment of a probationer is a discretionary one. Its power of review being limited, the Tribunal will set the decision aside only if it finds a mistake of fact or of law, or a formal or procedural flaw, or a clearly mistaken conclusion on the evidence, or neglect of an essential fact or abuse of authority. The purpose of probation is to find out whether a probationer has the mettle to make a satisfactory career in the organisation. The competent authority will determine on the evidence before it whether or not to confirm the appointment and must be allowed the utmost measure of discretion in deciding whether someone it has recruited shows, not just the professional qualifications, but also the personal attributes for the particular post in which he is to be working. Only where the Tribunal finds the most serious or glaring flaw in the exercise of the Director-General’s discretion will it interfere (see Judgment 1246, under 3). The Tribunal reaffirmed that view in Judgments 2427 and 2558, amongst others.
Reference(s)
ILOAT Judgment(s): 1246, 2427, 2558
Keywords
probationary period
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