Judgment No. 4505
Decision
The complaint is dismissed.
Summary
The complainant challenges the Director General’s decision to terminate his appointment at the end of his probationary period.
Judgment keywords
Keywords
probationary period; fixed-term; non-renewal of contract; complaint dismissed
Consideration 3
Extract:
In its case law, the Tribunal has held that “the purpose of probation is to permit an organization to assess the probationer’s suitability for a position” (see Judgment 4212, consideration 4). The Tribunal has also pointed out that an organisation enjoys wide discretion with regard to probation and that, for this reason, decisions taken in this context are subject to only limited review (see, for example, Judgment 4481, consideration 3). Thus, under the Tribunal’s settled case law, a decision of this kind will only be set aside if it is taken without authority or in breach of a rule of form or of procedure, or if it is 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 an abuse of authority. Moreover, where the reason given for refusal of confirmation is unsatisfactory performance, the Tribunal will not replace the organisation’s assessment with its own (see, in particular, Judgments 1418, consideration 6, 2646, consideration 5, 3913, consideration 2, and aforementioned 4212, consideration 4). In its case law, the Tribunal has also determined the principles applicable to an organisation’s obligations in respect of the probationary period. In particular, “an organisation must establish clear objectives against which performance will be assessed, provide the necessary guidance for the performance of the duties, identify in a timely fashion the unsatisfactory aspects of the performance so that remedial steps may be taken, and give a specific warning that the continued employment is in jeopardy” (see Judgments 2788, consideration 1, and aforementioned 4212, consideration 5).
Reference(s)
ILOAT Judgment(s): 1418, 2646, 2788, 3913, 4212, 4481
Keywords
probationary period; discretion; role of the tribunal
Consideration 6
Extract:
It is true that the Tribunal’s case law states that a probationer must be given a timely warning if her or his employment is in jeopardy and a specific warning that continued employment is in jeopardy (see Judgments 3240, consideration 21, and 3866, consideration 10). However, in this case, as the Appeal Board found in its report, the evidence shows that the complainant’s attention was indeed directed to his unsatisfactory performance and the need to improve his competencies. As the Tribunal observed in Judgment 3440, consideration 16, “[a] probationer is quite aware that unsatisfactory performance would occasion the termination of her or his appointment”.
Reference(s)
ILOAT Judgment(s): 3240, 3440, 3866
Keywords
probationary period; warning
Consideration 9
Extract:
[T]he Tribunal has pointed out many times that bad faith may not be presumed and must be proved (see Judgments 4451, consideration 16, and 4345, consideration 6). The burden of proof is on the complainant, and to support his allegation he must demonstrate that there was malice, ill-will, improper motive, fraud or similar dishonest purpose (see Judgment 3902, consideration 11). Similarly, the complainant bears the burden of proof in establishing any bias or inequitable treatment (see Judgment 4097, consideration 14).
Reference(s)
ILOAT Judgment(s): 3902, 4097, 4345, 4451
Keywords
burden of proof; personal prejudice; bad faith
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