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Performance evaluation (661,-666)
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Keywords: Performance evaluation
Total judgments found: 85
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Judgment 4902
138th Session, 2024
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his performance evaluation for 2019 rating such performance as “fair”.
Judgment keywords
Keywords:
complaint dismissed; performance evaluation; performance report; rating;
Considerations 13-14
Extract:
The complainant further maintains that paragraph 31 of AC 26 was violated because the HR representative who was to be consulted for the performance qualification during a collegial meeting was not present at that meeting as contemplated in the applicable procedures.
But, on this other issue, the record indicates that the HR representative stated at the JAAB hearing that during the final collegial consultation meeting of 24 March 2020, she had been unable to attend due to technical problems but that she finally ended up talking to the IT Head of Department later on the same day with regard to this collegial consultation.
While it is true that this discussion did not take place in an ideal collegial manner as a result of this technical problem, the fact remains that a meeting took place, with only one member missing, and that the consultation with the HR representative occurred later on the very same day and allowed the Head of Department to meet the requirements of the procedure set forth in AC 26 in this regard. This was also not the only consultation conducted in the performance process, and the missing member was the representative of HR, who did not have direct input to give on the appraisal of the performance of the complainant and was rather plausibly there to provide technical expertise.
In sum, even accepting that this constituted a procedural flaw, the Tribunal considers that it does not, in any event, amount to a substantial defect that would render the performance appraisal irregular and justify setting aside the impugned decision on that basis.
[…]
The complainant further maintains that paragraph 31 of AC 26 was violated because the HR representative who was to be consulted for the performance qualification during a collegial meeting was not present at that meeting as contemplated in the applicable procedures.
But, on this other issue, the record indicates that the HR representative stated at the JAAB hearing that during the final collegial consultation meeting of 24 March 2020, she had been unable to attend due to technical problems but that she finally ended up talking to the IT Head of Department later on the same day with regard to this collegial consultation.
While it is true that this discussion did not take place in an ideal collegial manner as a result of this technical problem, the fact remains that a meeting took place, with only one member missing, and that the consultation with the HR representative occurred later on the very same day and allowed the Head of Department to meet the requirements of the procedure set forth in AC 26 in this regard. This was also not the only consultation conducted in the performance process, and the missing member was the representative of HR, who did not have direct input to give on the appraisal of the performance of the complainant and was rather plausibly there to provide technical expertise.
In sum, even accepting that this constituted a procedural flaw, the Tribunal considers that it does not, in any event, amount to a substantial defect that would render the performance appraisal irregular and justify setting aside the impugned decision on that basis.
Keywords:
performance evaluation; procedural flaw;
Judgment 4901
138th Session, 2024
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his performance evaluation for 2018 rating such performance as “fair”.
Judgment keywords
Keywords:
complaint dismissed; performance evaluation; performance report; rating;
Judgment 4894
138th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for 2009.
Considerations 3 and 6
Extract:
In its opinion of 1 December 2014, the Internal Appeals Committee firstly considered its role and secondly the merits of the complainant’s internal appeal. As to its role, it firstly noted, correctly, the limited role of the Tribunal in reviewing staff reports which are discretionary in nature. However, and importantly (a matter not understood by all internal appeals bodies), it said that an internal appeal body can “determine whether the decision under appeal is the correct decision or whether, on the facts, some other decision should have been made” citing Judgment 3161, consideration 6.
[…]
It is now convenient to consider the additional relief sought by the complainant. This includes that the text in his staff report for 2009 be amended by order of the Tribunal. But it has long been acknowledged that a request such as this would involve an impermissible determination by the Tribunal of what the appraisal should be (see, recently, Judgment 4786, consideration 1). The Tribunal noted in Judgment 4786 that it can, if the report was the product of one of the legal flaws listed in Judgment 4564, consideration 3, set aside the contested staff report at the same time as the impugned decision and remit the matter to the Organisation for review. However, this would be review of a report concerning the appraisal of the complainant some considerable time ago. There should be no such remittal though the complainant may gain some comfort from the conclusions of the Internal Appeals Committee (together with the observations of the Tribunal in this judgment), whose opinion should be included in his personnel file, if it is not already. It is also assumed that the present judgment will be included in his personnel file.
Reference(s)
ILOAT Judgment(s): 3161, 4564, 4786
Keywords:
judicial review; performance evaluation; performance report; rating; role of the tribunal;
Judgment 4893
138th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for 2008-2009.
Considerations 4-5
Extract:
It is convenient to focus on the relief the complainant seeks. [...] His primary relief, as articulated in the rejoinder, is that the Tribunal “take a final decision on the merits”. The Tribunal takes this to include a reference to a claim made in the complaint form under the heading “[r]elief claimed”, that “the text [under] productivity in [the complainant’s] staff report [for] 2008-2009 should be amended by replacing the words [‘very good’] by [‘outstanding’], and the box marking should be amended correspondingly”. […]
However, it has long been acknowledged that a request such as this would involve an impermissible determination by the Tribunal of what the appraisal should be (see, recently, Judgment 4786, consideration 1). The Tribunal noted in Judgment 4786 that it can, if the report was the product of one of the legal flaws listed in Judgment 4564, consideration 3, set aside the contested staff report at the same time as the impugned decision and remit the matter to the Organisation for review. However, the complainant now eschews any desire to have the matter remitted. Accordingly, what remains is the impermissible request to the Tribunal to undertake the evaluation itself. This claim must be rejected.
Reference(s)
ILOAT Judgment(s): 4564, 4786
Keywords:
judicial review; performance evaluation; performance report; rating; role of the tribunal;
Judgment 4892
138th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her staff report for 2008-2009 and the decision not to initiate a harassment procedure against her reporting officer.
Consideration 5
Extract:
The second subheading referred to earlier is that “[t]he contested [staff report] is unjustified”. This is tantamount to an invitation to the Tribunal to enter the issue of whether a particular assessment in a performance appraisal report is appropriate. However, it has long been acknowledged that a request such as this would involve an impermissible determination by the Tribunal of what the appraisal should be (see, recently, Judgment 4786, consideration 1). The Tribunal noted in Judgment 4786 that it can, if the report was the product of one of the legal flaws listed in Judgment 4564, consideration 3, set aside the contested staff report at the same time as the impugned decision and remit the matter to the Organisation for review. But that is done only if a legal flaw is demonstrated. It is not in the present case.
Reference(s)
ILOAT Judgment(s): 4564, 4786
Keywords:
judicial review; performance evaluation; performance report; rating; role of the tribunal;
Judgment 4891
138th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for 2004-2005.
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:
judicial review; performance evaluation; performance report; rating; role of the tribunal;
Judgment 4890
138th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his staff report for 2004-2005.
Considerations 6 and 9
Extract:
The Tribunal has a limited power of review in situations involving performance appraisals of staff members. It is not the role of the Tribunal to supplant the administrative authorities of an international organisation in the assessment of the merits of a staff member. The Tribunal must rather recognize the discretionary authority of the bodies responsible for conducting such assessment which involves a value judgement. In Judgment 4795, consideration 9, the Tribunal indeed recalled the following regarding its limited power of review in matters of staff appraisal:
“[...] 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).”
(See also, to the same effect, Judgments 4731, consideration 4, and 4713, consideration 11.)
Moreover, in Judgment 4794, consideration 12, the Tribunal said the following in a situation where, like here, the complainant was asking that the assessment of his productivity be reviewed:
“Furthermore, aside from the fact that the Organisation has responded to the complainant’s criticisms factually, precisely and clearly in its submissions, the exercise that the complainant is asking the Tribunal to undertake with regard to the assessment of his productivity and his overall evaluation amounts in reality to a re-evaluation of his performance for 2016. However, that is a misconstruction of the Tribunal’s role, given the limited power of review the Tribunal may exercise in this matter according to its settled case law (see, for example, the aforementioned Judgment 4564, consideration 3, which was cited in the aforementioned Judgment 4637, consideration 13).”
[…] Reporting officers are not bound by ratings of previous staff reports and they must in all situations fairly and objectively assess the staff member’s productivity analysing each reporting period separately (see, for example, Judgments 4564, consideration 6, and 1688, consideration 6). […]
[I]t is not the role of the Tribunal to substitute its own assessment to the value judgement made by the competent bodies of the Organisation in their rating of the work productivity of the complainant.
Reference(s)
ILOAT Judgment(s): 1688, 3062, 3228, 3692, 4267, 4564, 4637, 4794, 4795
Keywords:
judicial review; performance evaluation; performance report; rating; role of the tribunal;
Judgment 4840
138th Session, 2024
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision not to renew her fixed-term contract due to underperformance after placing her on a three-month Performance Improvement Plan.
Consideration 10
Extract:
[A]n international organization must comply with the procedures it has established for evaluating performance before deciding to terminate or not to renew a contract for unsatisfactory performance. In Judgment 4666, consideration 4, the Tribunal aptly stated the following in this respect:
“An examination of a staff member’s assessment report before taking any decision not to renew that person’s contract on the basis of unsatisfactory performance is a fundamental obligation, non-compliance with which constitutes a procedural flaw that has the effect of an essential fact being overlooked (see, in particular, Judgments 2992, consideration 18, 2096, consideration 13, and the case law cited therein).”
In Judgment 3417, also involving IOM, this principle was enunciated in no uncertain terms at consideration 6:
“However while there is an undoubted right of an organisation to decide not to renew a fixed-term contract, it does not follow that an organisation is, additionally, immune from any liability if it has failed to follow its own procedures designed to monitor, assess and evaluate staff performance and progress. The fundamental purpose of such procedures is to explicitly alert a staff member to identified deficiencies in her or his performance and thus give the staff member an opportunity to address those deficiencies and improve performance. The interaction of such procedures and decisions not to renew fixed-term contracts was discussed by the Tribunal in Judgment 2991, under 13:
‘It is a general principle of international civil service law that there must be a valid reason for any decision not to renew a fixed-term contract. If the reason given is the unsatisfactory nature of the performance of the staff member concerned, who is entitled to be informed in a timely manner as to the unsatisfactory aspects of his or her service, the organisation must base its decision on an assessment of that person’s work carried out in compliance with previously established rules [...].’”
This is entirely consistent with the related principle to the effect that an organization cannot base an adverse decision on a staff member’s unsatisfactory performance if it has not complied with the rules established to evaluate that performance (see, for example, Judgments 3932, consideration 21, and 3252, consideration 8, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 2096, 2991, 2992, 3252, 3417, 3932, 4666
Keywords:
breach; due process; duty to substantiate decision; fixed-term; non-renewal of contract; patere legem; performance evaluation; rules of the organisation; unsatisfactory service;
Consideration 18
Extract:
[I]n the process leading up to the 6 October 2019 decision that ended up being confirmed by the impugned decision, IOM breached Rule 1.2.2(b) and Instruction IN/181 by not undertaking in due course the required periodic appraisal of the complainant’s work. The leap to the PIP was, in this sense, premature and a breach of due process, as much as a failure to adhere to explicit organizational rules.
Keywords:
breach; due process; patere legem; performance; performance evaluation; performance report; rules of the organisation;
Consideration 29
Extract:
Firm and constant precedent has it that an international organization has a duty to provide valid reasons for a decision not to renew a fixed-term contract. For example, in Judgment 4503, consideration 7, the Tribunal stated the following in support of this principle:
“Even though an organization is generally under no obligation to extend a fixed-term contract or to reassign someone whose fixed-term contract is expiring, unless it is specifically provided by a provision in the staff rules or regulations, the reason for the non-renewal must be valid (and not an excuse to get rid of a staff member) and be notified within a reasonable time (see Judgments 1128, consideration 2, 1154, consideration 4, 1983, consideration 6, 2406, consideration 14, 3353, consideration 15, 3582, consideration 9, 3586, consideration 10, 3626, consideration 12, and 3769, consideration 7).
An international organization is under an obligation to consider whether or not it is in its interests to renew a contract and to make a decision accordingly: though such a decision is discretionary, it cannot be arbitrary or irrational; there must be a good reason for it and the reason must be given (see Judgment 1128, consideration 2).”
In Judgment 3586, consideration 6, the Tribunal further clarified that “[t]hese grounds of review are applicable notwithstanding that the Tribunal has consistently stated, in Judgment 3444, [consideration] 3, for example, that an employee who is in the service of an international organization on a fixed-term contract does not have a right to the renewal of the contract when it expires and the complainant’s terms of appointment contained a similar provision”.
Reference(s)
ILOAT Judgment(s): 1128, 3444, 3586, 4503
Keywords:
breach; due process; duty to substantiate decision; fixed-term; non-renewal of contract; patere legem; performance evaluation; rules of the organisation; unsatisfactory service;
Consideration 5
Extract:
[T]he Tribunal disagrees with IOM’s assertion that the complaint is allegedly irreceivable (for failure to exhaust the internal means of redress, as the underlying appeal was not filed within the applicable deadline), insofar as it concerns the decisions, communicated to the complainant on 13 June 2019, to establish the PIP (including any alleged violation of the SES process) and to extend the complainant’s contract for a three-month period corresponding to the PIP’s duration. The Tribunal considers that a staff member may challenge the decision to subject her to a PIP in the context of an appeal against the final decision taken at the end of the PIP process. In Judgment 3713, consideration 3, the Tribunal recalled that:
“[I]t is obvious that the setting of a performance objective is merely a step in the process of evaluating the performance of employees. It is firmly established by the Tribunal’s case law that a measure of this kind can only be challenged in the context of an appeal against the final decision taken at the end of the process in question (see for example Judgment 2366, consideration 16, or Judgment 3198, consideration 13).” (See also Judgment 3890, consideration 5.)
In the present case, the decision taken at the end of the PIP process was a decision not to renew the complainant’s fixed-term contract due to underperformance and this decision resulted in the complainant being separated from IOM. This being so, the Tribunal considers that the above cited case law from Judgments 3713, consideration 3, and 3890, consideration 5, is equally applicable in a case such as the present. And given that the complainant impugns her final contract extension and ultimate non-renewal, it is of no relevance whether the issue of her prior three-month extension is receivable.
Reference(s)
ILOAT Judgment(s): 2366, 3198, 3713, 3890
Keywords:
final decision; performance; performance evaluation; performance report; step in the procedure; unsatisfactory service;
Consideration 20
Extract:
[A]s a result, the complainant was ultimately not provided with a full three months to improve her performance, even though it was initially determined by the organization that this was the necessary period established for improvement. In addition, while the draft PIP contemplated holding meetings every two weeks, in the end only four meetings took place to discuss the complainant’s PIP (24 July, 28 August, 4 September and 6 October 2019). And while the complainant was told at the 4 September meeting that her fixed-term contract would be renewed for six months, at the 6 October meeting that followed, she was rather notified of the non-renewal of that fixed-term contract beyond its expiry on 31 October 2019 because of the alleged sudden deterioration of her performance after mid-September.
It follows that, on this basis alone, the PIP process was irregular and procedurally flawed, as was the subsequent decision not to renew the complainant’s contract based on the results of that PIP.
Keywords:
breach; due process; patere legem; performance; performance evaluation; performance report; rules of the organisation; unsatisfactory service;
Considerations 23-24
Extract:
[T]he CoM thus failed to give the complainant reasonable time to improve her performance between the time that he recognized that it had improved sufficiently enough to warrant a longer contract renewal and the last-minute reversal of this view that led to the sudden imposition of the decision of non-renewal.
In this regard, the Tribunal considers that the Organization breached its duty to act in good faith by failing to provide adequate time for the complainant to improve her performance. The Tribunal recalls its well-settled case law that in terms of alleged unsatisfactory performance, a staff member should not only be warned but also given an opportunity to improve and correct the alleged poor or unsatisfactory performance. In Judgment 3282, consideration 5, it stated the following in this respect:
“As in Judgment 2916, under 4, the Tribunal holds that ‘an organisation may not in good faith end someone’s appointment for poor performance without first warning him and giving him an opportunity to do better [...]. Moreover, it cannot base an adverse decision on a staff member’s unsatisfactory performance if it has not complied with the rules established to evaluate that performance [...].’”
Similarly, in Judgment 3026, consideration 8, the Tribunal recalled that “[a]n opportunity to improve requires not only that the staff member be made aware of the matters requiring improvement, but, also, that he or she be given a reasonable time for that improvement to occur”.
Reference(s)
ILOAT Judgment(s): 2916, 3026, 3282
Keywords:
breach; due process; non-renewal of contract; patere legem; performance; performance evaluation; performance report; rules of the organisation; unsatisfactory service; warning; work appraisal;
Judgment keywords
Keywords:
breach; complaint allowed; complaint allowed in part; due process; duty to substantiate decision; fixed-term; non-renewal of contract; patere legem; performance evaluation; rules of the organisation; unsatisfactory service;
Consideration 7
Extract:
With respect to decisions relating to performance evaluation, the Tribunal has emphasized that it has a limited power of review. For instance, in Judgment 4666, consideration 4, it recalled the following:
“[T]he Tribunal recalls first of all that, under its settled case law, the assessment of an employee’s merit during a specified period involves a value judgement and it cannot substitute its own opinion for the assessment made by the competent bodies of the qualities, performance and conduct of the person concerned. The Tribunal will interfere only if a decision was taken in breach of applicable rules on competence, form or procedure, if it was based on a mistake of law or of fact, if an essential fact was overlooked, if a clearly mistaken conclusion was drawn from the facts, or if there was abuse of authority (see, for example, Judgments 4543, consideration 4, 4169, consideration 7, 4010, consideration 5, 3268, consideration 9, and 3039, consideration 7).” (See also Judgments 4713, consideration 11, and 4564, consideration 3.)
Reference(s)
ILOAT Judgment(s): 3039, 3268, 4010, 4169, 4543, 4564, 4666, 4713
Keywords:
judicial review; limits; mistake of fact; mistake of law; mistaken conclusion; misuse of authority; performance; performance evaluation;
Judgment 4794
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his appraisal report for 2016.
Judgment keywords
Keywords:
complaint dismissed; performance evaluation; performance report; rating;
Judgment 4793
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his appraisal report for 2016.
Consideration 5
Extract:
As the complainant challenges the impugned decision on procedural and substantive grounds, the Tribunal recalls the following statement which it made in Judgment 4564, considerations 2 and 3, concerning the limited power of review that it exercises in the matter of staff appraisals:
“It is not for the Tribunal, whose role is not to supplant the administrative authorities of an international organisation, to conduct an assessment of an employee’s merits instead of the competent reporting officer or the various supervisors and appeals bodies which may be called upon to revise that assessment. [...]
[A]ssessment of an employee’s merit 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.”
Reference(s)
ILOAT Judgment(s): 4564
Keywords:
judicial review; performance evaluation; performance report; rating; role of the tribunal;
Judgment 4792
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his appraisal report for 2016.
Considerations 3 & 11
Extract:
As the complainant challenges the impugned decision on procedural and substantive grounds, the Tribunal recalls the following statement which it made in Judgment 4564, considerations 2 and 3, concerning the limited power of review that it exercises in the matter of staff appraisals:
“It is not for the Tribunal, whose role is not to supplant the administrative authorities of an international organisation, to conduct an assessment of an employee’s merits instead of the competent reporting officer or the various supervisors and appeals bodies which may be called upon to revise that assessment. [...]
[A]ssessment of an employee’s merit 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.”
[…]
Regarding the third plea, the complainant’s argument to the effect that his 2016 performance assessment was not thoroughly done and was “extremely thin” implicitly invites the Tribunal into the realm of technical considerations regarding appraisal assessments that are not within its purview […].
Reference(s)
ILOAT Judgment(s): 4564
Keywords:
judicial review; performance evaluation; performance report; rating; role of the tribunal;
Judgment 4791
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her appraisal report for 2016.
Considerations 4 & 8
Extract:
The complainant’s requests […] to declare her 2016 appraisal report null and void, and […] to declare the whole appraisal procedure null and void, including the appraisal report, are noted. The Tribunal simply observes that it may, if appropriate, set aside the contested appraisal report at the same time as the impugned decision and remit the matter to the EPO for review.
[…]
As the complainant challenges the impugned decision on procedural and substantive grounds, the Tribunal recalls the following statement which it made in Judgment 4564, considerations 2 and 3, concerning the limited power of review that it exercises in the matter of staff appraisals:
“It is not for the Tribunal, whose role is not to supplant the administrative authorities of an international organisation, to conduct an assessment of an employee’s merits instead of the competent reporting officer or the various supervisors and appeals bodies which may be called upon to revise that assessment. [...]
[A]ssessment of an employee’s merit 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.”
Reference(s)
ILOAT Judgment(s): 4564
Keywords:
judicial review; performance evaluation; performance report; rating; role of the tribunal;
Judgment 4790
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his appraisal report for 2016.
Considerations 2 & 7
Extract:
The complainant’s request [...] to order that his 2016 appraisal report be amended so that he receives an overall performance rating of “above the level required for the function” instead of “corresponding to the level required for the function” is rejected as irreceivable as it is not within the Tribunal’s power to change the overall assessment rating in an appraisal report (see, for example, Judgments 4720, consideration 4, 4719, consideration 7, 4718, consideration 7, and 4637, consideration 13).
[…]
As the complainant challenges the impugned decision on procedural and substantive grounds, the Tribunal recalls the following statement which it made in Judgment 4564, considerations 2 and 3, concerning the limited power of review that it exercises in the matter of staff appraisals:
“It is not for the Tribunal, whose role is not to supplant the administrative authorities of an international organisation, to conduct an assessment of an employee’s merits instead of the competent reporting officer or the various supervisors and appeals bodies which may be called upon to revise that assessment. [...]
[A]ssessment of an employee’s merit 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.”
Reference(s)
ILOAT Judgment(s): 4564, 4637, 4718, 4719, 4720
Keywords:
judicial review; performance evaluation; performance report; rating; role of the tribunal;
Judgment 4789
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his appraisal report for 2016.
Consideration 6
Extract:
As the complainant challenges the impugned decision on procedural and substantive grounds, the Tribunal recalls the following statement which it made in Judgment 4564, considerations 2 and 3, concerning the limited power of review that it exercises in the matter of staff appraisals:
“It is not for the Tribunal, whose role is not to supplant the administrative authorities of an international organisation, to conduct an assessment of an employee’s merits instead of the competent reporting officer or the various supervisors and appeals bodies which may be called upon to revise that assessment. [...]
[A]ssessment of an employee’s merit 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.”
Reference(s)
ILOAT Judgment(s): 4564
Keywords:
judicial review; performance evaluation; performance report; rating; role of the tribunal;
Judgment 4788
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his appraisal report for 2016.
Considerations 4 & 7
Extract:
The complainant’s request for the orders stated in items (4), (5) and (7) are rejected as, in the main, they involve an impermissible determination by the Tribunal of what the appraisal should be. The Tribunal recalls its case law, stated, for example, in consideration 13 of Judgment 4637, referring to Judgment 4257, that its power to review appraisal reports is limited to considering, among other things, whether there was illegality in drawing up the contested report. It is not within the Tribunal’s power to change the overall assessment rating or to upgrade the evaluation of the functional and core competencies in an appraisal report (see also Judgments 4720, consideration 4, 4719, consideration 7, 4718, consideration 7). The Tribunal may, if necessary, set aside the contested appraisal report at the same time as the impugned decision and remit the matter to the EPO for review.
[…]
As the complainant challenges the impugned decision on procedural and substantive grounds, the Tribunal recalls the following statement which it made in Judgment 4564, considerations 2 and 3, concerning the limited power of review that it exercises in the matter of staff appraisals:
“It is not for the Tribunal, whose role is not to supplant the administrative authorities of an international organisation, to conduct an assessment of an employee’s merits instead of the competent reporting officer or the various supervisors and appeals bodies which may be called upon to revise that assessment. [...]
[A]ssessment of an employee’s merit 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.”
Reference(s)
ILOAT Judgment(s): 4257, 4564, 4718, 4719, 4720
Keywords:
judicial review; performance evaluation; performance report; rating; role of the tribunal;
Judgment 4787
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her appraisal report for 2016.
Considerations 1, 5, 7 & 8
Extract:
The Tribunal rejects the complainant’s request for an order that the EPO issues a “flawless” appraisal report for 2016 so that she receives an overall performance rating of “above the level required for the function” rather than “corresponding to the level required for the function”. In the main, such request involves an impermissible determination by the Tribunal of what the appraisal should be. The Tribunal may, if appropriate, set aside the contested appraisal report at the same time as the impugned decision and remit the matter to the EPO for review.
[…]
As the complainant challenges the impugned decision on procedural and substantive grounds, the Tribunal recalls the following statement which it made in Judgment 4564, considerations 2 and 3, concerning the limited power of review that it exercises in the matter of staff appraisals:
“It is not for the Tribunal, whose role is not to supplant the administrative authorities of an international organisation, to conduct an assessment of an employee’s merits instead of the competent reporting officer or the various supervisors and appeals bodies which may be called upon to revise that assessment. [...]
[A]ssessment of an employee’s merit 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.”
[…]
The Committee [...] stated the well-established principle that appraisal reports are discretionary decisions that are subject to only limited review […]
[…]
[I]t is not within the Tribunal’s power to change the overall assessment rating in an appraisal report (see, for example, Judgments 4720, consideration 4, 4719, consideration 7, 4718, consideration 7, and 4637, consideration 13).
Reference(s)
ILOAT Judgment(s): 4564, 4637, 4718, 4719, 4720
Keywords:
judicial review; performance evaluation; performance report; rating; role of the tribunal;
Judgment 4786
137th Session, 2024
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her appraisal report for 2016.
Considerations 1 & 4
Extract:
The Tribunal rejects the complainant’s request for an order that the EPO issues a new “flawless” appraisal report for 2016. In the main, such request involves an impermissible determination by the Tribunal of what the appraisal should be. The Tribunal may, if appropriate, set aside the contested appraisal report at the same time as the impugned decision and remit the matter to the EPO for review.
[…]
The Tribunal recalls the following statement which it made in Judgment 4564, considerations 2 and 3, concerning the limited power of review that it exercises in the matter of staff appraisals:
“It is not for the Tribunal, whose role is not to supplant the administrative authorities of an international organisation, to conduct an assessment of an employee’s merits instead of the competent reporting officer or the various supervisors and appeals bodies which may be called upon to revise that assessment. [...]
[A]ssessment of an employee’s merit 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.”
Reference(s)
ILOAT Judgment(s): 4564
Keywords:
judicial review; performance evaluation; performance report; rating; role of the tribunal;
Judgment 4748
137th Session, 2024
International Olive Council
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his appointment at the end of his probationary period.
Judgment keywords
Keywords:
complaint allowed; performance evaluation; probationary period; termination of employment;
Consideration 12
Extract:
[I]n the present case, there is no evidence that the complainant was warned, during the probationary period, of the alleged flaws in his performance, which would have given him an opportunity to improve or to take steps to remedy the deficiencies. In its pleadings before the Tribunal, the IOC extensively referenced specific incidents in order to justify the negative appraisal, yet these were not referred to in the probationary report and the IOC has not established that its concerns about the complainant’s performance were brought to his attention in a timely manner. Having regard to the case law [...], the complainant’s first plea is well founded and the decision to terminate the complainant’s appointment must therefore be set aside, rendering further discussion of his second and third pleas unnecessary.
Keywords:
performance evaluation; probationary period; termination of employment;
Judgment 4678
136th Session, 2023
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decisions not to extend his fixed-term contract due to unsatisfactory performance and to withhold his within-grade salary increment.
Consideration 10
Extract:
As to the plea that the extended six-month PIP period was not completed, the Tribunal notes that the complainant went on sick leave shortly after the PIP had been extended. This circumstance did not preclude the Director-General from deciding not to extend his contract upon its expiry on performance grounds.
Keywords:
performance evaluation; sick leave;
Judgment 4666
136th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges his negative performance assessment and the termination of his fixed-term appointment for unsatisfactory service.
Judgment keywords
Keywords:
complaint dismissed; performance evaluation;
Consideration 4
Extract:
[T]he Tribunal recalls first of all that, under its settled case law, the assessment of an employee’s merit during a specified period involves a value judgement and it cannot substitute its own opinion for the assessment made by the competent bodies of the qualities, performance and conduct of the person concerned. The Tribunal will interfere only if a decision was taken in breach of applicable rules on competence, form or procedure, if it was based on a mistake of law or of fact, if an essential fact was overlooked, if a clearly mistaken conclusion was drawn from the facts, or if there was abuse of authority (see, for example, Judgments 4543, consideration 4, 4169, consideration 7, 4010, consideration 5, 3268, consideration 9, and 3039, consideration 7).
An examination of a staff member’s assessment report before taking any decision not to renew that person’s contract on the basis of unsatisfactory performance is a fundamental obligation, non-compliance with which constitutes a procedural flaw that has the effect of an essential fact being overlooked (see, in particular, Judgments 2992, consideration 18, 2096, consideration 13, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 2096, 2992, 3039, 3268, 4010, 4169, 4543
Keywords:
non-renewal of contract; performance evaluation; unsatisfactory service;
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