UNDT/2010/133, Eldam
Whenever the administration decides a non-renewal of appointment on the grounds of poor performance, the Tribunal has to verify if the administration has complied with the relevant procedure. The application of ST/AI/2002/3 is not binding regarding staff members appointed for a period of less than one year. Having said that, once a supervisor decides to apply it, the said administrative must be fully complied with.According to ST/AI/2002/3, when the holder of a fixed-term appointment receives the lowest performance rating, the administration has the right not to renew his/her contract. When the staff member obtains the second lowest rating, the administration may not decide not to renew the appointment without having previously taken the steps permitting the concerned staff member to improve his/her performance (see UNDT/2010/104, Kapsou). The administration bears the burden of proving that it respected the procedure prescribed by ST/AI/2002/3. In the case at hand, it failed to do. The prescribed steps were not followed and hence, the resulting decision is illegal. The issuing of a reprimand to the applicant was unjustified. The investigation on her harassment allegations did not conclude to the veracity of her accusations, nor did it show that her aim was to cause harm. The existing doubts on what really occurred, which played to the benefit of the accused, must also be to the benefit of the applicant. Outcome: The non-renewal of appointment decision is rescinded. The administration may elect to pay as an alternative, compensation in the amount equivalent to three months’ net base salary. The written reprimand is to be withdrawn from the applicant’s official status file. A compensation for resulting moral damage is to be paid in the amount of three months’ net base salary. All other pleas are rejected.
The applicant joined the United Nations Observer Mission in Georgia (UNOMIG) under a six-month fixed-term appointment on 16 January 2007. On 4 June 2007, her supervisor submitted a special evaluation report rating her performance “Partially meets the expectations”. She signed it and her contract was extended for six months, but she later submitted a note for file contesting this evaluation. Further to a formal complaint for harassment, including sexual, by the applicant against two colleagues, an investigation panel was set-up. No performance evaluation report was completed for the following period. The applicant’s first reporting officer informed by memorandum her second reporting officer that her performance was unsatisfactory and that he did not recommended her contract be extended. The applicant initiated a rebuttal process. Her contract was extended on a monthly basis to allow the inquiry and the rebuttal panels to complete their tasks. The inquiry panel’s report concluded that her allegations were not founded. The applicant was issued a reprimand for having raised unfounded allegations against her colleagues. On 15 May 2008, it was notified to the applicant that her contract would not be renewed beyond 15 June 2008. On 13 June 2008, the rebuttal panel issued its report, recognizing that no evaluation report had been made, but considered that the negative appraisal of her work, contained in the memorandum issued by her supervisor, should be maintained.
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