ADMINISTRATIVE TRIBUNAL OF THE AFRICAN DEVELOPMENT BANK

Transcription

1 ADMINISTRATIVE TRIBUNAL OF THE AFRICAN DEVELOPMENT BANK QUORUM: Professor Ben Achour Yadh President Justice Salihu Modibbo Alfa BELGORE Vice President Justice Anne L. MACTAVISH Member Justice Benjamin Joses ODOKI Member APPLICATION No. 2011/07 L. S H, Applicant African Development Bank, Respondent Judgment No. 83 of the Administrative Tribunal rendered on 17 October 2012 I. THE FACTS 1. The Applicant, Mrs. L. S H, joined the Bank on 16 August At the time of events that led to the filing of this Application, she held the position of Senior Country Economist, grade PL.5, OREB Department She filed an Application with the Tribunal on 7 October She challenged the Respondent's decisions taken respectively on 10 September, 27 October and 23 December 2009, to: i. Extend her probationary period by four (4) additional months and following her refusal to accept the extension; 2 ii. Terminate her appointment as of 31 December The Applicant challenges this decision on the grounds that they are wrongful, groundless and taken in violation of the regulations in force. 4. On 28 April 2009, the Respondent offered the Applicant a position in its services. In this letter, it was specified that the recruitment was initially for a period of three (3) years and could be renewed thereafter for additional periods. This first contract was subject to a probationary period of twelve months and the appointment could be terminated by either party, subject to a written notice of one (1) month. 4 This appointment was to cover the period from 16 August 2008 to 15 August She served under four (4) successive managers: Mr Zejly, Mr Kolster, Mrs. Gaye and Mr Matondo. 5. At the date of expiry of the probationary period, the Applicant had not received any confirmation letter or letter terminating her appointment. On 14 September 2009, one month after the end of the probationary period, she instead received a letter from the CHRM Director, 5 dated 10 September 2009, informing her of the extension of the probationary period for an additional period of four (4) months. She replied on the same day opposing this proposal and on 29 1 OREB: East Region II Department. 2 Application: annexes Nos. 2 and 5, Letters from the Director CHRM of 10 September and 27 October Application: Annex 8: Letter to terminate the Applicant's appointment with the ADB. 4 Application: Annex 1, page CHRM: Department of Human Resources Management.

2 September the Applicant filed a request for review of the extension decision with the Vice President, CSVP On 26 October 2009, the Vice President took a decision overturning the decision of the CHRM Director because the Applicant s consent to the extension of her probationary period had not been sought as required by Rule This notwithstanding, she again received a letter from the Director CHRM dated 27 October 2009 seeking her consent for an extension of her probationary period for four (4) months. 9 On 28 and 29 October the Applicant reiterated her opposition to this extension decision. She reminded the Director CHRM that the extension was wrongful having been taken after expiry of the deadline of 14 August 2009 seeking her consent to an extension of her probationary period. 7. On 28 December 2009, the Applicant received a letter from the Bank dated 23 December informing her of termination of her appointment 10 as of 31 December By dated 21 January 2010, she petitioned the Bank President to review his decision. Having received no response, she appealed to the Staff Appeals Committee on 18 March The recommendations of the Staff Appeals Committee were forwarded to the Bank President on 10 May Following expiry of the sixty day deadline given to the President, the Applicant filed an Application to the Tribunal on 7 October II. ARGUMENTS OF THE PARTIES The Applicant 8. According to her Application, the extension decision is unlawful. The Respondent violated Staff Regulation 6.11 and Staff Rule She also contends that the Respondent did not comply with the requirements relating to the termination of her appointment, as specified in Staff Regulation For the Applicant, the decision to extend her probationary period was vitiated by incompetence rationae personae (the first extension decision) and by incompetence rationae temporis (second extension decision), as required by Staff Regulation Whereas, indeed, any fixed term appointment as that which was offered to the Applicant requires a probationary period subsequent to which a decision must be taken to: - confirm the appointment, or - terminate the appointment, or - by way of an exceptional measure and with the consent of that staff member, extend the probationary period, the Respondent ought to have taken this decision two (2) months before the end of that probationary period, that is, in this case, by 15 June Given that the extension decision was taken on 27 October 2009, that is, more than two (2) months after the end of the probationary period, the decision is unlawful, it should be considered as legally non existent and expunged from the Applicant's administrative records. 11 Indeed, the working relations between the staff member and the Bank are governed by rules which reconcile 6 Application: Annex 3, pages Vice President CSVP: Vice President in charge of Corporate Services. 8 Application: Annex 5, page Application: Annex 7, pages Application: Annex 8, pages Application: pages 11, 12 and 13. 2

3 the interests of the two parties in a balanced and fair manner. The Bank only confirms an appointment following a sufficient and satisfactory probationary period (twelve months). This period also allows the employer to determine whether or not to keep the staff member, after evaluating the latter's performance. 11. The deadlines for notifying a staff member of their confirmation or non confirmation pursuant to Staff Rule 64.03, also carry a good measure of humanity. The staff member informed on time, before the two (2) months period prescribed by regulation, is allowed to "overcome the shock" caused by the termination decision, prepares to leave the Bank and lastly "programmes his/her professional and social future. This is why, according to the Applicant, this prior notification is an obligation incumbent on the Respondent and a right for her. This is the spirit and the letter of Staff Regulation Therefore, the Applicant argues that as a result of the Bank s failure to inform her at least two (2) months before the end of her probationary period of the Bank s decision to extend her probationary period, the decision of 27 October 2009 is null and void. 13. The illegality of the decision to extend the probationary period renders the termination decision, taken on 23 December 2009, unlawful as well since it was taken following the Applicant's refusal to accept the extension, also decided outside the timeframe and without her prior consent. The Applicant disputes the Respondent's argument that non confirmation of the appointment which led to its termination of the appointment was due to: - Her unsatisfactory performance during the probationary period; - Multiple absences from work justified subsequently; - Leave days taken without permission. 14. For the Applicant, the Respondent also did not comply with the provisions applicable to nonconfirmation. Termination under Regulation also requires that the staff member be notified two (2) months before the end of the probationary period of the Bank s intention to terminate the employment of the staff member. It should have been preceded by a performance evaluation following the procedure laid down by the Staff Rules and Regulations and the Performance Management Guide. The Applicant contends that the decision not to extend her appointment is therefore unlawful in its form as well as in its merits. 15. With regard to form, the evaluation from all her supervisors was not provided to her to enable her to react as appropriate. The termination was not based on the evaluation of Mr. Zejly, ORNA Department, 13 under whom she worked and, who in view of her results, found that her appointment should be confirmed. This manager supervised her for six months, while the other three, Mr. Kolster, Mrs. Gaye and Mr. Matondo, the cumulative duration was five and a half months. The Respondent should have taken into account Mr. Zejly's evaluation rather than that of the other three managers. 16. On the merits, this termination was wrongful and unlawful; according to the Applicant, it smacked of abuse of power by the Respondent since the latter did not take into account the legitimate expectation that this staff member had. Having noted that the decision to confirm, not to confirm her appointment or to extend her probationary period was not taken by the anniversary date of the appointment, the Applicant expected the confirmation of her appointment. This certainty also stemmed from the Applicant s feeling of satisfaction resulting from her performance and results. 12 Staff Regulation : "At least sixty days before the end of a probationary period, in the case of a staff member employed on permanent or temporary contract terms, and one month in the case of other staff members, the President shall notify the staff member whether he has decided... " 13 ORNA: Operations sector, North Region 1. 3

4 This expectation was also based on her successful participation in several missions on the Respondent's behalf. She submits that if her performance, quality, quantity of work done and positive assessments by her colleagues from other departments were not satisfactory, the Respondent would not have invited her to be part of a recruitment panel for the position of Senior Finance Specialist 14 ; similarly, she would not have applied and been "short listed" in the past for a PL.3 position By terminating her appointment four months and one week after the expiry of her probation on 15 August 2009 and six months and one week after the deadline for the decision regarding the confirmation or non confirmation of the Applicant s appointment which she should have received on or before June 15, 2009, the Respondent violated the provision of Staff Rule (c). The Applicant argues that the language of the Rule is imperative. 16 The staff member was recruited because the Respondent needed her services; these having proved satisfactory technically, professionally, morally... confirmation should have been the logical and automatic outcome. 18. In reply to the Respondent's Answer, the Applicant reiterated the arguments developed in her Application, but also in her Appeal file, having finally obtained the Report and Recommendations of the Staff Appeals Committee, accompanied by the decision of the President of the African Development Bank. 17 She also criticizes the Respondent for having distorted the facts and procedure and particularly the serious breach of the Staff Rules governing the appeals process, especially Staff Rule (c) which requires that she be provided with a copy of the report of the Staff Appeals Committee. 18 She reaffirms that the Respondent did not comply with its own instruments regarding performance evaluation by establishing a mentoring programme for a staff member whose performance was deemed inadequate. 19. Lastly, the Applicant reiterated the environment and conditions in which she worked with Mr. Kolster, Mrs. Gaye and Mr. Matondo as her managers: harassment, aggression and physical violence, humiliation. These relations with, in particular, Mr. Kolster, forced her to seek and obtain the Ombudsman's assistance and intervention. All these managers leagued up against her, by their unwarranted evaluations, culminating in non confirmation of her appointment. Consequently, she prays the Tribunal to receive her Application and grant her requests. The Respondent 20. The Respondent responded to the Applicant's Application on 25 January 2012 and to the Reply on 20 April It recalled the chronology of events: - 18 March 2010, referral to the Staff Appeals Committee; - 8 March 2011, deliberations and recommendations; - 10 May 2011, submission of recommendations to the Bank President; - 7 October 2011, filing of the Application with the Tribunal; - 23 December 2011, first notification to the Applicant of the Recommendations by registered mail; - 25 January 2012, second notification of the Report and Recommendations and of the Bank President's decision. 14 Application, Annex 4, invitation to participate in a panel, pages Application, Annex 4 applying for a PL.3 position, pages Application, page 18 "...confirmation of an appointment after successful completion of probation shall be in writing..." 17 Reply, Annex 1, page 10 12, Annex 5, page Reply, pages

5 21. After restating the procedure governing recruitments, the Respondent submits that, contrary to the Applicant's point of view, it complied with the regulatory provisions in their contractual relations. It admits though that after the end of the probationary period, CHRM notified the Applicant on 14 September that her probation was to be extended by four months with effect from 16 September However, given that her consent was not sought pursuant to the provisions of Staff Regulation (iii), the first decision was overturned by the Vice President CSVP, then replaced by that of 27 October The Applicant refused to consent to the extension of her probationary period. 19 Before making a decision about her career, the Bank sought the Applicant s consent to an extension of her probationary period in order to give her an opportunity to improve her evaluations which to date had been considered inadequate. 22. In fact, it follows from the Applicant's various evaluations that she did not perform satisfactorily, given the requirements of the job: - She was supervised from 16 August 2008 to 2009 by Mr. Zejly. He expressed reservations regarding her ability to work unsupervised. While recommending confirmation of the Applicant, he noted that she had a "... great need for recognition, excessive from the start, undermined teamwork with colleagues and that she should be encouraged to participate in training and development sessions organized for staff. " 20 This evaluation was considered very mixed by the Respondent. - She was then supervised, still in the same department, by Mr. Kolster, from 2 February 2009 to 25 May This period was marked by several incidents. This manager highlighted the Applicant's chronic absenteeism, late coming and recurrent lack of work, inability to produce what was expected of her without the assistance of a Consultant hired to make up for her shortcomings. M. Kolster noted "limited knowledge, skills, performance below required standards; that she often provoked within the team tensions affecting team productivity..." Mr. Kolster had moreover explained to the Director CHRM, fairly thoroughly, the difficulties encountered with the Applicant. 21 Accordingly, he recommended non confirmation of the Applicant in her position From 25 May to 1 August, the Applicant worked under the supervision of Mrs. Gaye, Director OREB, where she was transferred. 23 The latter did not find her performance satisfactory either. She also noted that Mrs. S. showed no skills required of a Bank economist, and that she was unable to deliver on what was expected of her. She even had relationship difficulties with other colleagues. Mrs. Gaye also recommended nonconfirmation of her appointment After Mr. Matondo's appointment as OREB Director, he supervised the Applicant from 1 August until the termination of her contract on 31 December. He also expressed serious reservations about the Applicant's performance, her ability to discharge her duties, absenteeism and disruption she caused to the department's activities. 25 Although having regretted that the Bank had granted the Applicant an extension of her probationary period, up to the point of recommending placing her at the disposal of CHRM, Mr. Matondo established for her a four (4) month work programme, to enable her improve her 19 Answer, annexes 3 and 4, pages Answer, Annex 8, pp Answer, Annex 8, pp Answer, Annex 12, pp Answer, Annex 17 bis, page Answer, Annex 18, pages , Annex 19, page Answer, Annex 32, pages 174 and 175, Annex 34, page

6 performance. 26 In his evaluation dated 25 November 2009, Mr. Matondo also concluded that the Applicant's appointment should not be confirmed Following these evaluations, including Mr. Zejly s, the Respondent, after the Applicant refused to accept the extension of her probationary period, decided not to confirm the appointment and, therefore, to terminate her contract. 24. The Respondent disputes the Applicant's argument regarding the automatic confirmation of an appointment at the end of the probationary period of twelve (12) months. There must be a written confirmation. However, the Applicant did not receive any written confirmation provided for under Staff Rule (c). The Respondent also argues that this position is consistent with jurisprudence, including that of the United Nations Administrative Tribunal The Respondent contends that its decision to terminate the Applicant's appointment is founded in law. It applied the provisions of Staff Regulations and such as for instance termination of an appointment when the staff member is on leave. "... If, at the time of the notification of termination, the staff member concerned is on sick leave (...) the period of notice provided by virtue of Regulation shall be extended by the number of days during which the staff member remains on such leave after the notification." 26. Moreover, Mrs. S.'s Application does not concern the evaluation of her performance or termination of appointment for poor performance of a staff member confirmed in his/her position after the end of the probationary period. The dispute between the Applicant and the Respondent relates to termination of the appointment of a staff member not confirmed in her position at the end of the probationary period of twelve (12) months. In this case, the Respondent exercised its discretion; it cannot be compelled to confirm an appointment simply because the staff member refused extension of the probationary period. If a staff member has not met the required criteria for confirmation of his/her appointment, the Respondent is within its discretion to terminate the staff member s employment. In this case, the Respondent refers to the conclusions of the Staff Appeals Committee in paragraphs 77 and 78 of its report. This adds to the fact that the details related to the Applicant's performance evaluation could rightly justify termination of the Applicant s appointment, especially after the latter's refusal to submit to an extension of the probationary period. This point of view was also confirmed by the Appeals Committee in paragraph of its report. 27. The Respondent also refutes the Applicant's arguments regarding the lawfulness of the evaluation forms. Those filled by Mr. Kolster, Mrs. Gaye and Mr. Matondo cannot be considered as unlawful merely because they were not submitted before the end of the probationary period. They all cover the entire period under review, that is, one (1) year. Staff Rule does not require the communication of a copy of the performance evaluation report to a staff member on probation. Sections 5.7, paragraph 14, 6.3 and 5.3 of the Performance Management Guide ("the Guide") do not apply in this case Answer, Annex 8, pp Answer, Annex 8, pp Answer, Annexes 30 and 31, pages Answer, Annex 5, pp Paragraph 5.4 of the Guide: "The performance of all employees of the Bank who have been with the Bank for 6 months or more by 31 December of the year shall be formally evaluated. The process excludes Elected Officers, Technical Assistance Experts, Short term staff or Consultants. There is a separate provision for the evaluation of staff who is on probation." 6

7 28. The Applicant contends that she was a victim of harassment, intimidation, misogyny, xenophobia, non white racism and bullying from Mr. Kolster. She also accused him of being anti Muslim. These accusations are unfounded, completely at odds with the ethics and spirit of the Bank's mandate and mission. In any event, the Applicant never filed a formal complaint for harassment or physical assault against Mr. Kolster before the relevant bodies. 31 The Applicant's statements are excessive and reveal her mindset which, instead of recognizing her weaknesses inadequate performance, absenteeism, difficulty adapting to the working environment of the Bank, and a tendency to take credit for work done as a team. Instead, she prefers to take a subjective stance, making baseless accusations against her former directors and the entire institution. This institution is international, encompassing 77 nationalities from all races, religions and cultures The Respondent submits that the Applicant offers no legal reason in support of her claim that there was a breach of the principle of legitimate expectation. She was not bound to the Bank by a permanent contract but by a fixed term contract of three (3) years. This is buttressed by the basic principles of law and the jurisprudence of this Tribunal. In addition, the appointment letter is clear: a fixed term contract, subject to a probationary period of twelve (12) months during which the appointment may be terminated at any time by either party. 30. Regarding the proceedings before the Staff Appeals Committee and the facts relating thereto, the Respondent acknowledges that the Applicant was not provided with the Report and Recommendations of the Staff Appeals Committee or with the decision of the President within the relevant time. Notification was effectively made to the Counsel. In the absence of acknowledgement of receipt, the Respondent made a new notification of the Staff Appeals Committee s Report and Recommendations. It follows from the letter of the Director CHRM, dated 21 December 2011, that the Bank President had accepted all the conclusions of the Committee, unanimously adopted by its members to: i. Uphold the decision of termination of the Applicant's appointment; ii. iii. iv. Grant her an amount equivalent to three months of her last salary (that is, 15,636.92,) as damages for non compliance with the Rules of Procedure set out in paragraph 94 (sic) of the Appeals Committee report; Pay her the lump sum of five (5) thousand Units of Account (UA 5000) (or 5,781.60) as partial compensation for her legal costs, and Dismiss the Applicant's other claims. The total amount granted is estimated at UA (that is, 21,418.52). 31. The Respondent stood ready to pay these amounts but still had not received any indication from the Applicant on how to proceed with this payment, despite its request in this regard. 33 To conclude, the Respondent prays the Tribunal to adopt the proposals contained in the conclusions of the Staff Appeals Committee already accepted by the Bank President. 31 Rejoinder, 10 20, pages 3 to Answer, 97, 98, 99 and 100, pages 19 and Reply, Annex 1, page 11 and 12. 7

8 III. THE PROCEDURE 32. Following receipt of the decision, dated 23 December 2009, not to confirm her appointment with effect from 31 December, the Applicant appealed to the Staff Appeals Committee on 18 March The exchange of submissions was followed by a hearing on 8 March 2011, in the presence of both parties. The Report and Recommendations as well as the President's decision were not communicated to the Applicant despite numerous requests. It is in this context that she filed an Application with the Tribunal on October 7, IV. CLAIMS OF THE PARTIES The Applicant 33. The Applicant's claims are both administrative and financial. These include: - Annulment of the two (2) decisions taken by the Bank on 27 October and 23 December 2009, expungement thereof from her personnel file as well as all documents relating to the evaluation of her performance; - Reinstatement in her position, or failing which, payment of five years' salary for compensation in lieu of notice, compensation for breach of contract to the tune of UA 1,460,484. UA as damages for non material loss due to humiliation, harassment, bullying and threats; - Three years' salary as severance pay; - Payment of accrued and untaken leave days; - Payment of her salary shortfall to the tune of UA corresponding to the period from 1 January to 30 April 2010, the last day of her work stoppage determined by the attending physician; - Compensation for revenue shortfall due to a drop in her work performance, and the ensuing non pecuniary damage; - Compensation for non pecuniary damage to the tune of one million five hundred thousand Euros ( 1,500,000); - Hand over to her a copy of the ADB video recording of 3 March 2009 on the Libya Note; - Payment of rental costs incurred from January to March 2010, due to automatic renewal of the lease for her house to the tune of TND 10,500; - Payment of legal fees for her two (2) counsels, to the tune of UA 50,000; - Return to her of copies of all documents relating to her, including her performance evaluation. The Respondent 34. The Respondent prays the Tribunal to consider the fact that it is willing to make all payments to which the Applicant is entitled, that is: 8

9 - Payment In lieu of notice equivalent to sixty (60) days, that is, two (2) months' salary; - Severance pay equivalent to one (1) month's salary; - Compensation equal to one (1) month's salary representing the remaining period of the maximum number of sick leave days to which the Applicant was entitled; - Accrued but untaken leave days at the day of termination of the appointment. For the rest of the Applicant's claims, including compensation for harassment, misogyny and racism, accusations that were not made first to the existing specific bodies, the Applicant did not exhaust all of her available remedies. The Respondent prays the Tribunal to declare itself incompetent to deal with these claims. The Respondent also prays the Tribunal to dismiss the Applicant's other claims, given that the appointment termination is well founded in fact and law. V. THE LAW 35. The Applicant challenges the termination of her appointment that was based upon her refusal to consent to a second term of probation. Her first probationary period was for twelve (12) months. When she was offered a second probationary period of four (4) months, her consent was necessary. However, she refused to consent and was alleging that her appointment had already implicitly been confirmed. In the Bank s view, the only option open to it was to terminate her appointment. 36. The Applicant believed that if an extension of her probation was not sought at least sixty (60) days before the end of her initial probationary period as required by Rule of the Staff Rules, it must be presumed that she had been confirmed in her appointment. She was wrong in this case because Rule (c) requires such confirmation to be in writing and not presumed. It is unfortunate that the Bank in this instance did not follow its own rules. Something that should have been done within ten (10) months of the Applicant s employment was not done until fourteen (14) months. This certainly gave rise to an expectation, albeit an erroneous one, that her appointment had been confirmed. 37. Staff Regulation provides that At least sixty days before the end of a probationary period, in the case of a staff member employed on permanent or temporary contract terms, and one month in the case of other staff members, the President shall notify the staff member whether he has decided: i. to confirm the appointment; or ii. to terminate the appointment; or iii. by way of an exceptional measure and with the consent of that staff member, to extend the probationary period, provided, however, that the whole of the period thus extended shall not exceed by half the probationary period specified in the letter of appointment. 38. The procedure in the Bank for all staff recruited on fixed term contracts is to initially be on probation for one year, which can be extended for a further six months with the employee s consent, after a report from the Head of Department to the Director CHRM. In the Applicant s case, four Heads of Department reported on her performance in line with Staff Rule

10 There was an earlier recommendation to extend the Applicant s probation which was withdrawn because her consent was not sought pursuant to Staff Regulation On the 27 th of October 2009, the Applicant received a letter seeking an extension of her probationary period by a further four months, a condition she was not happy with. However, the letter did not comply with Staff Regulation quoted above, as it had not been provided to the Applicant at least sixty (60) days before the end of her initial probationary period. The only defect is that the Bank was not on time in giving the letter of termination of appointment. For the Applicant, it caused a psychological trauma which cannot easily be eradicated by an award of damages. The Tribunal is of the strong view that the Bank must strictly adhere to its Rules and Regulations especially in dealing with the tenure of its staff members. 39. The Applicant expected the end of her probationary period which never came. However, she had four supervisors during her probationary period, and all of them had negative opinion as to her performance when on probation; the only one recommending her permanent employment, Mr. Zejly had this to say about her great need for recognition from the start, undermined teamwork with colleagues and that she should be ready to participate in training and development sessions organized for the staff. The other supervisors were not as kind in that they specifically advised termination of her employment. 40. The Applicant was found by her supervisors to have shown a lack of skill as a bank economist, and to have relationship difficulties with other colleagues. It was because of these supervisors observations that Staff Regulations and were invoked to terminate her employment. The Respondent certainly relied upon her supervisors recommendations that the Applicant s appointment not be confirmed. 41. Before the Application was filed with the Tribunal, the Staff Appeals Committee had made the following recommendations to the President: i. Uphold the decision to terminate the Applicant s appointment as recommended by the Staff Appeals Committee; ii. iii. iv. Grant her an amount equivalent to three months of her last salary (that is, 15,636.92) as damages for non compliance with the Rules of Procedure set out in paragraph 94 of the Appeals Committee Report; Pay her the lump sum of five thousand Units of Account (UA 5,000) or 5, as partial compensation for legal costs, and Dismiss her other claims. 42. The question for the Tribunal is what consequences should flow from the failure of the Bank to comply with the notice provision of Rule of the Staff Rules. The Applicant submits that the breach of the Rule voids the non confirmation of her appointment, with the result that she should be deemed to have been confirmed in her position. The Tribunal does not agree. 43. The Bank was not obliged to confirm the Applicant s appointment, and it is clear that it did not want to do so because of its concerns about her performance. Similarly, the Applicant was not entitled to have her appointment confirmed. If the Tribunal were to now confirm the Applicant in her post, it would be to put her in a better position than she would have been in, had the Bank complied with its obligations under Rule This is not reasonable. 10

11 44. What the Applicant was entitled to under the Staff Rules was to be told whether or not her appointment would be confirmed or her probation extended, at least 60 days before the end of her probationary period. Because of the Bank s failure to comply with the Rules, she did not get that advance notice. As a result, the Applicant is entitled to be compensated for any losses that she may have sustained as a result of the lack of advance notice of the non confirmation of her appointment. 45. The Staff Appeals Committee has already recommended that the Bank compensate the Applicant for her lost of salary in lieu of notice. The Bank has agreed to pay the Applicant for three (3) months salary and the Applicant is not entitled to any further compensation in this regard. 46. The Applicant also claims to have incurred additional rent payments as a result of the lack of advance notice of the non confirmation of her appointment. Had the Bank provided the Applicant with the proper notice, she would have been able to terminate her lease earlier and may not have sustained these losses. As a consequence, the Bank is obliged to compensate the Applicant for any additional rent that she was required to pay as a direct result of the lack of advance notice to a maximum of three (3) months. However, it is incumbent on the Applicant to first provide the Bank with satisfactory evidence of the amount of rent that she was paying each month as well as the terms of her lease, including the termination and renewal provisions governing her rental arrangements and proof of payment. 47. It is evident that the Applicant was deeply hurt by the non confirmation of her appointment. No doubt she would also have been very hurt, had she been told 60 days before the end of her initial probationary period that her performance was not satisfactory and that she could only stay with the Bank if she consented to an extension of her probation. However, the Bank was entitled to do that, and the Applicant would have had no claim for moral damages in this regard. 48. However, the failure of the Bank to give the Applicant the appropriate advance notice of its intentions appears to have lulled the Applicant into a false sense of security. Her understanding that her appointment had been confirmed was no doubt deepened when the one year anniversary date of her appointment came and went with no word from the Bank. As a consequence, the Applicant was understandably shocked when she was told by the Bank that she could only stay if she consented to an extension of her probation. The applicant is entitled to receive moral damages for this shock. 49. While the Tribunal has dismissed the majority of the Applicant s claims, it has however acknowledged that some of her claims are valid. This is a matter that the Tribunal will take into account in relation to the issue of legal costs. 50. Finally, the Tribunal adopts all of the awards previously made by the Staff Appeals Committee and incorporates them into this decision. VI. THE DECISION 51. For the foregoing reasons, the Tribunal orders as follows: i) The Applicant s request to set aside the decision terminating her employment is dismissed; ii) As ordered by the Staff Appeals Committee, the Bank shall pay the Applicant three (3) months of her salary for the failure to comply with the Staff Rules; 11

12 iii) iv) The Bank shall pay the Applicant the sum of five thousand (5000) UA for her legal costs associated with the proceedings before the Staff Appeals Committee and an additional amount of two thousand (2000) UA for the proceedings before the Tribunal; The Bank shall pay the Applicant the sum of two thousand (2000) UA for moral damages; v) The Bank shall pay the Applicant a maximum of three (3) months rent subject to satisfactory proof of that payment in accordance with paragraph 46 of these reasons; vi) All other claims are rejected. Professor Yadh BEN ACHOUR President Mrs. Albertine LIPOU MASSALA Executive Secretary COUNSEL FOR THE APPLICANT Maitre Kamel Ben MESSAOUD Counsel COUNSEL FOR THE RESPONDENT Mr. Kalidou GADIO Ms. Almaz TADESSE Ms. Mariam Diawara General Counsel Division Manager Chief Legal Counsel 12