UNDT/2021/062, Yavuz
Whether the Applicant’s performance was managed or evaluated in a fair and objective manner The Tribunal notes that the Applicant has adduced evidence of possible bias and lack of objectivity in the evaluation of his performance by the FRO and the SRO… Even assuming that the FRO and the SRO evaluated the Applicant’s performance in a fair and an objective manner, they certainly failed to “proactively assist” the Applicant to remedy his performance shortcomings in accordance with section 10.1 of ST/AI/2010/5. Moreover, the undisputed interpersonal issues between the Applicant and his FRO have further impaired the ability of the FRO and the SRO to objectively evaluate his performance. This is supported by the documentary evidence showing that senior management in UNECE, in particular the DES, had expressed serious concerns about the treatment the Applicant received from his FRO and SRO and their ability to continue to supervise his work. From 2 March 2018, the DES, UNECE, took concrete measures to change the Applicant’s supervisory line and to ensure that “he [would] be given a chance to work under another supervisor” after completion of the PIP. Therefore, the actions taken by the DES, UNECE, further support the Tribunal’s finding that the FRO and the SRO failed to evaluate the Applicant’s performance in a fair and objective manner. Moreover, the Tribunal finds that there is a disconnect between the actions taken by the DES to change the Applicant’s supervisory line due to perceived difficulties in the supervisory relationship, and the subsequent decision not to renew the Applicant’s appointment based on an assessment of his performance by these same supervisors who were removed from their roles. This unusual situation further undermines the objectivity of the Applicant’s performance appraisal. However, the rebuttal process did not cure this irregularity as there was no consideration by the Panel of any difficulty in the supervisory relationship. Accordingly, the Tribunal finds that the Applicant’s performance was not managed or evaluated in a fair and objective manner. Whether the Organization failed to consider relevant information in making the contested decision The Tribunal finds incoherent to neglect the more recent good performance results of a staff member when the Organization examines whether to renew a contract based on unsatisfactory performance. The Organization’s failure to consider the more recent improvement of the Applicant’s performance also infringes its obligation to ensure that performance evaluations be objective, fair and well based (see Andelic UNDT/2020/007, not appealed, para. 58; see also Tadonki 2014-UNAT-400, para. 56). The Tribunal recalls its finding that the Organization failed to manage or evaluate the Applicant’s performance in a fair and objective manner and did not consider the Applicant’s more recent satisfactory performance. These facts were relevant to the Organization’s decision not to renew the Applicant’s fixed-term appointment on performance grounds, and their lack of consideration consequently makes the contested decision unlawful. Accordingly, the Tribunal finds that the decision not to renew the Applicant’s fixed-term appointment for alleged unsatisfactory performance is unlawful. Remedies Rescission of the contested decision As there is no information before the Tribunal regarding whether the post initially encumbered by the Applicant has been filled, the Tribunal finds that the appropriate remedy is the rescission of the unlawful decision not to renew the Applicant’s fixed-term appointment and the reinstatement of the Applicant in the same position he previously encumbered (see for similar rescission in case of non-renewal of a fixed-term appointment, Quatrini UNDT/2020/053; Loose UNDT/2020/038; Applicant UNDT/2020/016; Andelic, and Maslei UNDT/2015/041). Determination of the compensation in lieu Having considered the seniority of the Applicant, the type of contract held, and the chance of renewal of the contract in a position still required by the Administration, the Tribunal sets the amount of the compensation in lieu at three months’ net-base salary at the grade and level that the Applicant held at the time of his separation from service (see, e.g., Quatrini and Andelic). Compensation for harm Regarding the alleged moral damage, the Tribunal notes that the Applicant provides medical reports dated 5 April 2019, 2 July 2019 and 8 July 2019 describing the conditions suffered by referring to alleged harassment only, which will be addressed by the Tribunal in Case No. UNDT/GVA/2020/006, but not to the contested non-renewal decision. Therefore, the Tribunal finds that the Applicant fails to establish the causal link between the contested decision and the alleged moral damage. With respect to the alleged harm caused by his maintenance on short-term contracts, the Tribunal notes that the Applicant has not provided any evidence to substantiate it. Consequently, the Tribunal cannot award him any compensation in this respect. Accordingly, the Tribunal rejects the Applicant’s claim for compensation for alleged harm.
The Applicant contests the decision to separate him from service “by non-renewal for purported performance reasons”.
The starting point for the examination of the lawfulness of the decision not to renew the Applicant’s fixed-term appointment for alleged poor performance is the well-established principle that a fixed-term appointment does not bear any expectancy of renewal (staff regulation 4.5(c); staff rule 4.13(c); see also Ncube 2017-UNAT-721, para. 15; Appellee 2013-UNAT-341, paras. 14-16). However, in case of non-renewal of an appointment on the grounds of unsatisfactory performance, the Administration is required to provide “sufficient proof of incompetence, usually on the basis of a procedurally fair assessment or appraisal establishing the staff member’s shortcomings and the reasons for them” (see Sarwar 2017-UNAT-757, para. 72; see also Ncube, para. 17). In this respect, the Appeals Tribunal held in Ncube that: [i]f the Administration can present an e-PAS which is in full accord with the provisions in ST/AI/2010/5, it is then up to the staff member to prove that the content or the findings of the e-PAS are not correct. If, on the other hand, the e-PAS suffers from procedural irregularities, an evaluation can only be upheld if it was not arbitrary and if the Administration proves that it is nonetheless objective, fair and well-based (see Ncube, para. 18; see also Tadonki 2014-UNAT-400, para. 56). Nevertheless, a non-renewal decision can be challenged on the grounds that the Administration “has not acted fairly, justly or transparently with the staff member or was motivated by bias, prejudice or improper motive against the staff member”. It is incumbent on the staff member to prove that such factors played a role in the non-renewal decision (see Said 2015-UNAT-500, para. 34). Rules and procedures governing performance management The “objectiveness, transparency and legality of a performance evaluation [stem] primarily from the procedures indicated in the applicable Administrative Instruction [ST/AI/2010/5]” (see Tadonki 2014-UNAT-400, para. 55). Pursuant to section 5.3 of ST/AI/2010/5, a SRO, who shall be the FRO’s supervisor or equivalent, is responsible for inter alia ensuring that the FRO understands and applies the Performance Management and Development System principles and procedures properly and fairly (see also Sarwar 2017-UNAT-757, para. 8) Whether the Applicant’s performance was managed or evaluated in a fair and objective manner The Tribunal recognizes that its role is not to review de novo the Administration’s evaluation of the Applicant’s performance but rather to determine whether the rules and procedures governing performance evaluation were complied with (see Ncube UNDT-2016-069, para. 127). In this respect, the Tribunal recalls that section 2.1 of ST/AI/2010/5 requires that staff members’ performance be managed or evaluated in a “fair and equitable manner”. This means that performance evaluation should be objective and bias-free. Whether the Organization failed to consider relevant information in making the contested decision In determining the lawfulness of an administrative decision, it should “consider whether relevant matters have been ignored and irrelevant matters considered” (see Sanwidi 2010-UNAT-084, para. 40). Remedies The Appeals Tribunal has consistently held that “it is not enough to demonstrate an illegality to obtain compensation: the claimant bears the burden of proof to establish the existence of negative consequences, able to be considered damages resulting from the illegality on a cause-effect lien” and requires that “the harm be directly caused by the administrative decision in question” (see Ashour, para. 31; see also Kebede 2018-UNAT-874, para. 20).