Non-renewal of contract (384,-666)

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• Judgment 4877

  
  138th Session, 2024
  United Nations Educational, Scientific and Cultural Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: Le requérant conteste le non-renouvellement de son engagement à titre temporaire.

  Judgment keywords

  Keywords:

  complaint dismissed; non-renewal of contract;
  

  Consideration 2

  Extract:

  Il convient de rappeler que, en vertu d’une jurisprudence constante du Tribunal, la décision de ne pas renouveler le contrat d’engagement d’un fonctionnaire d’une organisation internationale relève du pouvoir d’appréciation du chef exécutif de celle-ci et ne peut faire l’objet, en conséquence, que d’un contrôle restreint de la part du Tribunal. Elle ne peut être annulée que si elle émane d’un organe incompétent, si elle viole une règle de forme ou de procédure, si elle repose sur une erreur de droit ou de fait, si son auteur a omis de tenir compte de faits essentiels ou a tiré des pièces du dossier des conclusions manifestement erronées, ou si elle est entachée de détournement de pouvoir (voir, par exemple, les jugements 4654, au considérant 16, 4172, au considérant 5, 2148, au considérant 23, ou 1052, au considérant 4). A fortiori, il en va ainsi lorsque, comme en l’espèce, le litige porte sur le non-renouvellement d’un contrat d’engagement à titre temporaire précisant expressément que son titulaire n’avait aucune garantie de renouvellement ou de conversion en tout autre type de contrat au sein de l’UNESCO.
  Cela étant dit, il n’en demeure pas moins que, toujours conformément à la jurisprudence du Tribunal applicable de façon générale en matière de relations contractuelles, une décision de non-renouvellement doit se fonder sur des raisons objectives et valables, et non sur des raisons arbitraires ou irrationnelles (voir, notamment, les jugements 4809, au considérant 10, 4654, au considérant 16, 4495, au considérant 15, 3769, au considérant 7, 3353, au considérant 15, 2708, au considérant 12, 1154, au considérant 4, et 1128, au considérant 2). Ces raisons doivent par ailleurs être communiquées au fonctionnaire concerné (voir, notamment, les jugements 4809, au considérant 10, 3914, au considérant 14, et 3444, au considérant 8), sans qu’il soit cependant nécessaire que cette motivation figure dans la décision de non-renouvellement elle-même (voir, en ce sens, les jugements 4368, au considérant 15, 3914, au considérant 15, et 1750, au considérant 6).

  Reference(s)

  ILOAT Judgment(s): 1052, 1128, 1154, 2148, 2708, 3353, 3444, 3769, 3914, 4172, 4368, 4495, 4654, 4809
  

  Keywords:

  discretion; non-renewal of contract; role of the tribunal;
  

  Consideration 8

  Extract:

  [L]e Tribunal rappelle [...] sa jurisprudence selon laquelle la motivation d’une décision de non-renouvellement de contrat n’a pas nécessairement à figurer dans la décision elle-même (voir, par exemple, les jugements 4368, au considérant 15, 3914, au considérant 15, et 1750, au considérant 6), mais peut également être communiquée au membre du personnel concerné d’une autre manière, notamment lors d’une réunion (comparer, par exemple, avec le jugement 3914, au considérant 15).

  Reference(s)

  ILOAT Judgment(s): 1750, 3914, 4368
  

  Keywords:

  administrative decision; motivation; non-renewal of contract;
  

  Consideration 9

  Extract:

  [L]e Tribunal rappelle que, selon sa jurisprudence, un préavis d’une durée raisonnable doit toutefois être donné lorsqu’il est mis fin à un engagement à titre temporaire, et ce, quels que soient les termes des contrats concernés ou les dispositions des Statut et Règlement du personnel de l’organisation en cause (voir, notamment, les jugements 3746, au considérant 9, 3353, au considérant 24, et 1544, au considérant 11).

  Reference(s)

  ILOAT Judgment(s): 1544, 3353, 3746
  

  Keywords:

  non-renewal of contract; notice;
  

  
  
  

• Judgment 4860

  
  138th Session, 2024
  World Health Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant contests the decision not to renew her fixed-term contract upon expiry.

  Judgment keywords

  Keywords:

  complaint dismissed; fixed-term; non-renewal of contract;
  

  
  
  

• Judgment 4841

  
  138th Session, 2024
  International Organization for Migration
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decisions to abolish the post she used to hold and not to renew her contract beyond 31 December 2020.

  Judgment keywords

  Keywords:

  abolition of post; complaint allowed; non-renewal of contract;
  

  Consideration 4

  Extract:

  The Tribunal’s case law has often reiterated that a staff member appointed on a fixed-term contract does not have a right to the renewal of the contract, when it expires (see, for example, Judgments 4587, consideration 19, 4462, consideration 18, 3586, consideration 6, and 3448, consideration 7). As a result, the Tribunal’s scope of review is limited when an organization decides not to extend or renew a fixed-term appointment because the Tribunal respects an organization’s discretion to determine its own requirements and the career prospects of staff (see, for example, Judgment 3948, consideration 2, and the case law cited therein). Thus, the Tribunal will not substitute its own assessment for that of the organization. The non-renewal of a fixed-term contract may be lawfully justified by the abolition of the post in the context of a restructuring process, provided that the abolition of the post be based on objective and valid grounds, as the abolition of a post must not serve as a pretext for removing unwanted staff, which would constitute an abuse of authority (see Judgment 3940, consideration 3). A restructuring decision must be justified by real needs (see Judgment 4009, consideration 15). An international organization may find that it has to reorganise some or all of its departments or units. Restructuring measures may naturally entail the abolition of posts, the creation of new posts or the redeployment of staff. The steps to be taken in this respect are a matter of an organization’s discretion and are subject to only limited review by the Tribunal (see Judgments 4004, consideration 2, and 3940, consideration 3).
  In brief, decisions concerning the non-renewal of a fixed-term contract, the abolition of a post, and/or a restructuring process, are discretionary decisions subject to limited review by the Tribunal. Non-renewal decisions may be set aside only if they were taken in breach of a rule of form or procedure; if they rest upon an error of fact or of law; if some essential fact was overlooked; if there was an abuse or misuse of authority; or if clearly mistaken conclusions were drawn from the evidence (see, for example, Judgment 3299, consideration 6). In turn, restructuring decisions, including the abolition of posts, may be set aside only if they are not taken in accordance with the relevant rules on competence, form or procedure, if they rest upon a mistake of fact or law, or if they constituted an abuse of authority. The Tribunal will not rule on the appropriateness of the restructuring, as it will not substitute the organization’s view with its own (see, for example, Judgments 4004, consideration 2, 2933, consideration 10, and 2742, consideration 34).

  Reference(s)

  ILOAT Judgment(s): 2742, 2933, 3448, 3586, 3940, 3948, 4004, 4009, 4462, 4587
  

  Keywords:

  abolition of post; judicial review; non-renewal of contract;
  

  
  
  

• 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 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 8

  Extract:

  With respect to decisions pertaining to the non-renewal of fixed-term contracts, the Tribunal has also emphasized the limited scope of the review it can exercise. In Judgment 4146, consideration 3, it stated, in particular, the following:
  “The case law of the Tribunal states that an organisation enjoys wide discretion in deciding whether or not to renew a fixed-term appointment and, a fortiori, whether to convert it into an indefinite one. Although the exercise of such discretion is not unfettered, it is subject to only limited review, as the Tribunal will respect the organisation’s freedom to determine its own requirements. Accordingly, the Tribunal will only set aside such decisions if they were taken without authority or in breach of a rule of form or of procedure, or if they rested on an error of fact or of law, or if some essential fact was overlooked, or if there was abuse of authority, or if clearly mistaken conclusions were drawn from the evidence (see, for example, Judgment 3772, under 5).”

  Reference(s)

  ILOAT Judgment(s): 3772, 4146
  

  Keywords:

  fixed-term; judicial review; limits; mistake of fact; mistake of law; mistaken conclusion; misuse of authority; non-renewal of contract;
  

  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 34

  Extract:

  [T]he complainant claims material damages in an amount equal to two years’ salary, benefits, step increases, pension contributions, and all other entitlements and emoluments that she would have received had she not been wrongfully separated from service. This claim is not substantiated in the complainant’s proceedings be it in terms of years sought or of her expectations within the Organization. Given that any fixed-term contract the complainant ever held with IOM never exceeded one year and that the total length of her services with the Organization lasted approximately five years, the Tribunal considers that this claim is not justified and overstated in the circumstances.
  An award of material damages in an amount equivalent to nine months’ salary, including benefits, entitlements and emoluments, represents a fair and reasonable compensation in the present case. IOM will be ordered to pay this amount to the complainant, plus interest at the rate of 5 per cent per annum from 1 November 2019, less any amounts she may have earned from other employment during that period of nine months beginning on 1 November 2019.

  Keywords:

  breach; burden of proof; due process; fixed-term; injury; material damages; non-renewal of contract;
  

  Consideration 35

  Extract:

  The complainant also claims moral damages in an amount equal to no less than one year of her former gross salary and benefits. But the Tribunal’s case law states that in respect of damages, the complainant bears the burden of proof and that she must provide evidence of the alleged injury (see, for example, Judgment 4156, consideration 5). It suffices to note that in the present situation, notwithstanding this precedent, the complainant did not provide any specification of the moral injury she allegedly suffered nor evidence supporting its existence. This claim must consequently be rejected.

  Reference(s)

  ILOAT Judgment(s): 4156
  

  Keywords:

  breach; burden of proof; due process; fixed-term; injury; moral damages; non-renewal of contract;
  

  
  
  

• Judgment 4834

  
  138th Session, 2024
  International Federation of Red Cross and Red Crescent Societies
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the non-extension of his fixed-term appointment.

  Consideration 2

  Extract:

  Staff Regulation 11.2.2 relevantly states that the end of a fixed-term contract at its normal term does not create a right for the employee to have his or her contract automatically renewed or extended. The Tribunal’s case law states that notwithstanding a provision such as Staff Regulation 11.2.2 or a similar provision in a complainant’s terms of appointment, the wide discretion an international organization enjoys in deciding whether or not to renew a fixed-term appointment is subject to only limited review as the Tribunal respects the organization’s freedom to determine its own requirements and the career prospects of staff (see Judgment 4503, consideration 7). However, the discretion is not unfettered and the Tribunal will set aside such a decision taken without authority; in breach of a rule of form or of procedure; if the decision rested on an error of fact or of law; if some essential fact was overlooked; if there was abuse of authority, or if clearly mistaken conclusions were drawn from the evidence. The case law further states that the Tribunal’s role in reviewing a decision not to renew a fixed-term contract for budgetary reasons is limited (see, for example, Judgment 3367, consideration 11).

  Reference(s)

  ILOAT Judgment(s): 3367, 4503
  

  Keywords:

  budgetary reasons; fixed-term; judicial review; non-renewal of contract;
  

  Consideration 4

  Extract:

  As the Federation points out, and the facts make clear, the complainant’s position was never abolished but could no longer be funded, and consequently his contract was not extended. The Tribunal has stated, in consideration 11 of Judgment 4231, for example, that ordinarily, in the absence of a specific provision to the contrary, an organization’s duty to reassign a staff member arises when a post is abolished. As there is no specific provision to the contrary, the Federation had no obligation to reassign the complainant.

  Reference(s)

  ILOAT Judgment(s): 4231
  

  Keywords:

  abolition of post; fixed-term; non-renewal of contract; organisation's duties; reassignment;
  

  Judgment keywords

  Keywords:

  complaint allowed; fixed-term; non-renewal of contract;
  

  Consideration 9

  Extract:

  The Tribunal notes that in its report, the Commission correctly referred, among other things, to Judgment 3163, in which the Tribunal considered a contention that alleged lack of funding for the position of the complainant in that case was due to the diversion of funds for that position, and although funds could have been available, the organization chose for a dubious reason not to use them. In consideration 8, the Tribunal stated the following, and that reasoning can be applied to the present case: “[…] It is unnecessary to descend into greater detail about whether funds were or were not available to fund the complainant’s position beyond the beginning of 2010. That is because this Tribunal has set its face against assessing the exercise of a discretionary power, such as the power not to renew a fixed-term contract, unless it is demonstrated that the competent body acted on some wrong principle, breached procedural rules, overlooked some material fact or reached a clearly wrong conclusion (see, for example, Judgments 1044, under 3, 1262, under 4, and 2975, under 15). The substance of the complainant’s case on this issue is that other decisions could have been made which would have resulted in funding being available for the position. The error of fact identified in the complainant’s submissions does not involve the identification of a material fact assumed by the decision-maker to exist, which did not exist. Rather, she identifies facts which would sustain a decision other than the decision actually made. To impugn the exercise of a discretionary decision-making power by reference to, and based on, the factual matrix in which the decision was made, a complainant must demonstrate something more than that other decisions might reasonably have been made on the known facts. It is necessary to establish that the exercise of the discretionary power miscarried because the decision-maker was led into error by proceeding on a misunderstanding about what the material facts were. As the complainant has failed to do so, this plea must be rejected.”

  Reference(s)

  ILOAT Judgment(s): 1044, 1262, 2975, 3163
  

  Keywords:

  budgetary reasons; discretion; fixed-term; judicial review; non-renewal of contract;
  

  Consideration 15

  Extract:

  [T]he complainant’s right to be heard [in the internal appeal procedure] was violated […] [T]he Tribunal will not remit the case to the Federation for the internal appeal to be reconsidered as it is satisfied that the reason provided for the non-renewal of the complainant’s contract is supported by the evidence in the record.

  Keywords:

  case sent back to organisation; non-renewal of contract;
  

  Consideration 7

  Extract:

  [A] decision not to renew a fixed-term contract must be based on objective and valid grounds and the staff member must be informed in a timely manner of the real reason for the decision.

  Keywords:

  fixed-term; non-renewal of contract;
  

  Consideration 8

  Extract:

  [T]he complainant refers to consideration 13 of Judgment 3586 in which the Tribunal considered that “[w]hether funds were known to have been available to fund the extension of the complainant [in that case]’s contract [was] a question of fact, which the [internal appeal body] had to determine” and that “[the internal appeal body] could not have simply relied on [the organization]’s assertion that grants were received for specified purposes that did not include funding for the complainant’s post”. It is apparent to the Tribunal that this is the exercise the Appeals Commission conducted in the internal appeal procedure at hand. The Commission assessed the relevant documents and facts it had gathered from the Federation and from the interviews it conducted, including with the complainant, it made a finding that “no funding was available for the [...] position held by the [complainant].

  Reference(s)

  ILOAT Judgment(s): 3586
  

  Keywords:

  budgetary reasons; internal appeals body; non-renewal of contract;
  

  
  
  

• Judgment 4822

  
  138th Session, 2024
  European Southern Observatory
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision not to renew his fixed-term contract.

  Judgment keywords

  Keywords:

  complaint dismissed; non-renewal of contract;
  

  
  
  

• Judgment 4809

  
  137th Session, 2024
  International Labour Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant seeks a contractual redefinition of his employment relationship and the setting aside of the decision not to renew his last contract.

  Consideration 10

  Extract:

  It is true that, under the Tribunal’s case law, the decision not to renew an official’s contract of employment must, even if it is a matter for the competent authority’s discretion, be based on valid reasons that must be communicated to the staff member concerned (see, for example, Judgments 3914, considerations 14, 15 and 18, 2708, consideration 12, and 1273, consideration 8).
  However, this case law does not apply to external collaboration contracts, which are not contracts appointing officials. It is plain from the preceding consideration that the contract to which the non-renewal decision applied – which was, by definition, the last contract previously concluded – should be regarded, unlike the earlier contracts, as an external collaboration contract.

  Reference(s)

  ILOAT Judgment(s): 1273, 2708, 3914
  

  Keywords:

  external collaborator; non official; non-renewal of contract;
  

  
  
  

• Judgment 4741

  
  137th Session, 2024
  European Southern Observatory
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the non-renewal of her fixed-term contract.

  Considerations 11-12

  Extract:

  [T]he Tribunal already recalled in Judgment 1734, consideration 3, with regard to Staff Rule VI 1.02, the very provision on which this dispute turns, emphasising the following:
  “VI 1.02 is quite plain. An internal appeal being ruled out, [the complainant] should have thought of filing a complaint against non-renewal. If he could not understand the article on his own, he was free to get advice.”
  It follows that, under Article VII, paragraph 2, of the Statute of the Tribunal, since the complainant did not file her complaint within 90 days of the Organisation’s decision not to renew or extend her fixed-term contract, it is also irreceivable from that standpoint. The Tribunal has recalled on many occasions that, “[w]ith respect to Article VII, paragraph 2, of the Tribunal’s Statute, the Tribunal’s case law requires strict adherence to the ninety-day time limit on the grounds that time limits are an objective matter of fact and that strict adherence is necessary for the efficacy of the whole system of administrative and judicial review of decisions” (see Judgments 4354, consideration 7, 3947, consideration 5, and 3559, consideration 3).

  Reference(s)

  ILOAT Judgment(s): 1734, 3559, 3947, 4354
  

  Keywords:

  interpretation; interpretation of rules; non-renewal of contract; ratione temporis; receivability of the complaint; time limit;
  

  Judgment keywords

  Keywords:

  complaint dismissed; non-renewal of contract; receivability of the complaint;
  

  
  
  

• 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.

  Judgment keywords

  Keywords:

  complaint dismissed; fixed-term; non-renewal of contract; unsatisfactory service;
  

  Consideration 4

  Extract:

  [T]he Tribunal recalls its well-established case law regarding decisions concerning staff performance appraisals and renewal of fixed-term appointments. Organizations have wide discretion in taking such decisions, which are therefore subject to only limited review by the Tribunal, which 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 fact or of law, if an essential fact was overlooked, if a clearly mistaken conclusion was drawn from the facts, or if there was abuse of authority (see Judgment 4170, consideration 9, and the case law cited therein). Where the reason for not renewing a contract is the unsatisfactory nature of the performance of a staff member, who is entitled to be informed in a timely manner as to the unsatisfactory aspects of her or his service, the organization can base its decision only on an assessment carried out in compliance with established rules (see, in particular, Judgment 2991, consideration 13, and the case law cited therein). This presupposes that the person in question has been informed in advance of what is expected of her or him, in particular by the communication of a precise description of the objectives set (see Judgment 3148, consideration 25).

  Reference(s)

  ILOAT Judgment(s): 2991, 3148, 4170
  

  Keywords:

  fixed-term; non-renewal of contract; performance; role of the tribunal; unsatisfactory service;
  

  
  
  

• 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.

  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;
  

  
  
  

• Judgment 4654

  
  136th Session, 2023
  World Intellectual Property Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant seeks a redefinition of his employment relationship and the setting aside of the decision not to renew his employment contract.

  Consideration 16

  Extract:

  [T]he decision to separate the complainant from service was taken by WIPO on the grounds that, in its view, most of the requirements which the complainant’s employment had met had gradually disappeared, so there was no reason to renew his contract. While, as the Organization correctly observes, staff members with temporary appointments do not hold budget posts, the Tribunal considers that the disappearance of the functions performed by the holder of such an appointment is still an abolition of post within the meaning of the applicable case law, in any event in the case of functions that have been performed on a continuous basis. It follows that, although WIPO was not under an obligation to redeploy the complainant, it was nevertheless required, in view of the length of his employment relationship with the Organization, to explore with him other employment options prior to his separation, even though the measure at issue was not a termination of a current appointment (see, for comparable situations, Judgments 3159, consideration 20, and 2902, consideration 14).

  Reference(s)

  ILOAT Judgment(s): 2902, 3159
  

  Keywords:

  abolition of post; fixed-term; non-renewal of contract; reassignment; reclassification; separation from service;
  

  Consideration 18

  Extract:

  The complainant [...] submits that the decision not to renew his appointment is unlawful because proper notice and reasons were not given for the decision to abolish his post, on which the non-renewal decision must necessarily have been based.
  However, while it is true that the Tribunal’s case law requires that a decision to abolish a post satisfy these conditions (see in particular Judgment 3041, consideration 8), they were indeed satisfied in this case.

  Reference(s)

  ILOAT Judgment(s): 3041
  

  Keywords:

  motivation; non-renewal of contract;
  

  Judgment keywords

  Keywords:

  abolition of post; complaint dismissed; conversion of contract; late appeal; non-renewal of contract; redefinition of contract; short-term;
  

  Consideration 16

  Extract:

  It must be recalled that the Tribunal has consistently held that a decision not to renew the appointment of a staff member of an international organisation lies within the discretion of its executive head and is therefore subject to only limited review. It may be set aside only if it was taken without authority, or in breach of a rule of form or of procedure, or was 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 abuse of authority (see, for example, Judgments 4172, consideration 5, 2148, consideration 23, and 1052, consideration 4).
  Under Staff Regulation 4.16(e), “[n]o initial temporary appointment or any extension thereof shall carry with it any expectancy of, nor imply any right to, further extension”. Thus, while a staff member employed under a temporary appointment is not entitled to have her or his contract renewed upon expiry, the fact remains that, under the Tribunal’s case law applicable to contractual relationships generally, a decision not to renew such a contract must be based on objective, valid reasons, and not on arbitrary or irrational ones (see, in particular, Judgments 4495, consideration 15, 3769, consideration 7, 3353, consideration 15, and 1128, consideration 2).

  Reference(s)

  ILOAT Judgment(s): 1052, 1128, 2148, 3353, 3769, 4172, 4495
  

  Keywords:

  fixed-term; non-renewal of contract;
  

  
  
  

• Judgment 4621

  
  135th Session, 2023
  International Criminal Police Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision not to extend her short-term appointment and complains that she was not able to exercise her right to an effective internal appeal in its regard.

  Judgment keywords

  Keywords:

  case sent back to organisation; complaint allowed; direct appeal to tribunal; non-renewal of contract; right of appeal;
  

  
  
  

• Judgment 4603

  
  135th Session, 2023
  Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision not to extend his fixed-term appointment on account of his unsatisfactory performance.

  Consideration 2

  Extract:

  Consistent case law has it that a decision not to extend or renew a fixed-term appointment is discretionary and may be set aside only on limited grounds. Where the reason given for the non-renewal is unsatisfactory performance, the decision can be successfully impugned if it is fundamentally flawed, for example, by procedural defects, a failure to take account of some essential fact, abuse or misuse of authority, or if it was based on an error of fact or of law (see Judgment 3743, under 2). The Tribunal has also consistently held that “an organisation 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 Judgment 3932, under 21). The Tribunal has also stated that if the reason given for the non-renewal of a fixed-term contract 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 and that allied to this is an obligation to afford an opportunity to improve (see Judgment 4289, under 7, and the case law cited therein) and that an international organization must comply with its own procedures in relation to performance appraisals (see, for example, Judgment 3150, under 9).

  Reference(s)

  ILOAT Judgment(s): 3150, 3743, 3932, 4289
  

  Keywords:

  discretion; fixed-term; non-renewal of contract; performance evaluation;
  

  Judgment keywords

  Keywords:

  complaint allowed; fixed-term; non-renewal of contract; performance evaluation;
  

  
  
  

• Judgment 4588

  
  135th Session, 2023
  South Centre
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the non-renewal of her fixed-term appointment.

  Judgment keywords

  Keywords:

  complaint allowed; fixed-term; non-renewal of contract; reorganisation;
  

  
  
  

• Judgment 4587

  
  135th Session, 2023
  South Centre
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the non-renewal of her fixed-term appointment.

  Judgment keywords

  Keywords:

  complaint allowed; fixed-term; non-renewal of contract; reorganisation;
  

  Considerations 19-20

  Extract:

  [I]t is worth recalling that the case law of the Tribunal has often reiterated that an employee on a fixed-term contract does not have a right to the renewal of the contract when it expires (see, for example, Judgments 4462, consideration 18, 3586, consideration 6, and 3448, consideration 7), and that the Tribunal’s scope of review is limited when an organization decides not to extend or renew a fixed-term appointment (see Judgment 3948, consideration 2, and the case law cited therein).
  The claims of the complainant for the payment of termination indemnities, which rely on the provisions of Staff Regulation 9.1.2 that apply in situations of termination of an appointment as opposed to non-renewal of a fixed-term contract, must consequently be rejected.

  Reference(s)

  ILOAT Judgment(s): 3448, 3586, 3948, 4462
  

  Keywords:

  fixed-term; non-renewal of contract; terminal entitlements;
  

  
  
  

• Judgment 4545

  
  134th Session, 2022
  International Fund for Agricultural Development
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to terminate her appointment.

  Judgment keywords

  Keywords:

  complaint dismissed; non-renewal of contract;
  

  
  
  

• Judgment 4518

  
  134th Session, 2022
  International Telecommunication Union
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges his non-appointment to a fixed-term position and the non-renewal of his short-term contract, as well as the organisation’s refusal to conduct an investigation into the allegations of harassment made against him which, according to him, form the basis of the non-appointment and non-renewal decisions.

  Judgment keywords

  Keywords:

  complaint allowed; harassment; non-renewal of contract; selection procedure; short-term;
  

  
  
  

• Judgment 4513

  
  134th Session, 2022
  European Organisation for the Safety of Air Navigation
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision not to convert his appointment as a graduate when it expired and to terminate it.

  Consideration 5

  Extract:

  Under the Tribunal’s case law, the decision not to renew a fixed-term contract is a discretionary decision, but if the decision rests on poor performance, the assessment of that performance has to be made in accordance with the rules established for that purpose; this is allied with an obligation to afford an opportunity to improve (see, in particular, Judgment 4289, under 7, and the case law cited therein). These principles are also applicable when, as in the present case, a decision is to be taken on whether to convert a graduate appointment into an appointment for an undetermined period or a limited period.

  Reference(s)

  ILOAT Judgment(s): 4289
  

  Keywords:

  non-renewal of contract; performance; short-term;
  

  
  
  

• Judgment 4507

  
  134th Session, 2022
  Organisation for the Prohibition of Chemical Weapons
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant impugns the decision not to renew his fixed-term appointment.

  Judgment keywords

  Keywords:

  complaint dismissed; fixed-term; non-renewal of contract; senior official;
  

  Consideration 5

  Extract:

  It is well settled in the Tribunal’s case law that an organisation enjoys wide discretion in deciding whether or not to renew a fixed-term appointment. The exercise of such discretion is subject to only limited review as the Tribunal will respect the organisation’s freedom to determine its own requirements and the career prospects of staff. However, the exercise of such discretion is not unfettered and the Tribunal will set the decision aside if it was taken without authority, or in breach of a rule of form or of procedure, or if it rested on an error of fact or of law, or if some essential fact was overlooked, or if there was abuse of authority, or if clearly mistaken conclusions were drawn from the evidence (see Judgments 3948, consideration 2, 4062, consideration 6, 4146, consideration 3, 4231, consideration 3, and 4363, consideration 10).
  These grounds of review are applicable notwithstanding that the Tribunal has consistently stated that an employee who is in the service of an international organisation 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 contain a similar provision (see Judgments 3444, consideration 3, 3586, consideration 6, and 4218, consideration 2).

  Reference(s)

  ILOAT Judgment(s): 3444, 3586, 3948, 4062, 4146, 4218, 4231, 4363
  

  Keywords:

  discretion; fixed-term; non-renewal of contract; role of the tribunal;
  

  
  
  

• Judgment 4505

  
  134th Session, 2022
  World Intellectual Property Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the Director General’s decision to terminate his appointment at the end of his probationary period.

  Judgment keywords

  Keywords:

  complaint dismissed; fixed-term; non-renewal of contract; probationary period;
  

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