UNDT/2010/104, Kapsou
It results from ST/AI/2002/3 that the administration is entitled not to renew the FTA of a staff member whose performance was rated “does not meet performance expectationsâ€, on the mere grounds of the staff member’s bad performance. It further results from ST/AI/2002/3 that in case the staff member’s performance was rated “partially meets performance expectationsâ€, the administration is obliged to apply measures which allow the staff member to improve his/her performance, before it can decide on the non-renewal of the staff member’s FTA on the basis of bad performance. In the present case, the applicant, after rebuttal, was rated “partially meets performance expectations†and the administration developed a performance improvement plan, to which the applicant agreed, in order to allow her to improve her performance. Since the applicant refused to execute that plan, the decision that her FTA would no longer be extended, was legal. The administration, through the Rebuttal Panel and the Ethics office, duly addressed the applicant’s complaints. The applicant, who bears the burden of proof, did not provide evidence that her bad performance evaluation and the decision not to extend her appointment were based on her complaints against her colleague and her supervisors. Outcome:The application was rejected.
The applicant entered the service of the UNFICYP in August 2007 and her contract was renewed in December 2007. She submitted a complaint for harassment against a colleague in February 2008. On 3 April 2008, the applicant had a meeting with her first and second reporting officer in the framework of the end-of-year appraisal and the same day, her e-PAS was rated “does not meet performance expectationsâ€. The applicant submitted a rebuttal statement on 14 April 2008, noting that her negative evaluation was the result of harassment on the part of her reporting officers. The Rebuttal Panel in its report dated 2 May 2008 stated that the rating should be raised to “Partially meets performance expectations†and that a performance improvement plan should be established for the applicant. The applicant was informed that her appointment would be extended in order to allow her to improve her performance under the performance improvement plan and that if her performance would not improve, her contract might not be renewed. The applicant signed the improvement plan on 4 June 2008. She fell ill on 17 June 2008. Between June and September 2008, the applicant submitted several complaints for harassment and abuse of authority against her supervisors, to OIOS, the Ethics Office and the Panel on discrimination and other grievances. On 6 September 2008, the applicant, while on sick leave, was informed that in view of her bad performance, her contract was not going to be renewed beyond 6 September 2008. The applicant filed a request for suspension of action, which was granted, and her contract was renewed until 17 November 2008, in order to allow her to execute the improvement plan during a three-month period. On 6 October 2008, the applicant informed the Chief of mission support that she would no longer execute the duties contained in the improvement plan. On 10 October 2008, the applicant was informed that in view of her refusal to execute the improvement plan, her contract was not going to be renewed beyond 17 November 2008. On 17 November 2008, the applicant received a copy of the report of the Ethics Office on her complaint, which noted that the available information did not allow to conclude that her negative performance evaluation and the non-renewal of her appointment was linked to the complaints she had submitted against her colleague and her supervisors.
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