Obligation to give a warning and time to improve prior to sanctions. Insights on the duty to act in good faith.

By Frédéric Dopagne, Saskia Lemeire and Bert Theeuwes

In a decision of 24 January 2018 (Judgment No. 3911) , the Administrative Tribunal of the International Labor Organization (ILO Administrative Tribunal) reconfirmed and explained an organization’s duty to act in good faith prior to sanctioning staff members.

The duty to act in good faith is known as one of the general principles of international civil service law, meaning that it applies regardless of whether it is explicitly mentioned in the internal staff rules.

In its decision, the Tribunal refers to its earlier case law stating that “the Tribunal’s case law is voluminous and consistent to the effect that an organisation owes it to its employees, especially probationers, to guide them in the performance of their duties and to warn them in specific terms if they are not giving satisfaction and are in risk of dismissal. (See Judgment 1212.) More recently, in Judgment 2414 the Tribunal held that: ‘23. [...] A staff member whose service is not considered satisfactory is entitled to be informed in a timely manner as to the unsatisfactory aspects of his or her service so that steps can be taken to remedy the situation. Moreover, he or she is entitled to have objectives set in advance so that he or she will know the yardstick by which future performance will be assessed. These are fundamental aspects of the duty of an international organisation to act in good faith towards its staff members and to respect their dignity. That is why it was said in Judgment 2170 that an organisation must ‘conduct its affairs in a way that allows its employees to rely on the fact that [its rules] will be followed’.”

In the case at hand, a staff member had received a warning, following which a meeting took place with the Human Resources Department and his line manager. Shortly after this meeting, the staff member was dismissed. The Tribunal considered that “while there were signs that the complainant’s supervisor may have been dissatisfied with his performance, there was nothing which constituted a warning to him that he risked termination for professional inadequacy if his service did not improve”.  The Tribunal concluded that the fact that the warning,  the meeting with the Human Resources Department and the supervisor and the decision to terminate his contract all took place within one month shows that the staff member in question was not “given an opportunity to improve his performance after he received the written warning”.

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This is a very clear but strict interpretation of the duty of care and chances are that – unless an adequate process is built into the rules and practice of the international organization – the organization will fail this standard.

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