ILO case law: The international organisation and the termination of the employment agreement in the trial period

The Dutch employment law does not apply to these organisations. The working relationship is governed by the own rules of the concerning organisation, which contain an internal procedure as well. Only after this procedure has been completed, the employee – or staff member – can file a complaint with the International Labour Organisation (ILO).

Facts

This procedure was followed by a staff member of the Technical Centre for Agricultural and Rural Cooperation (CTA). He was appointed by CTA per 15 April 2009 for an indefinite period of time. The first 6 months of the appointment were considered as trial period. On the 13 July the employee was informed that there were doubts about his professional capabilities. On 6 August a meeting took place with HR, in which this was further discussed. The next day CTA informed him that his contract was terminated with immediate effect. The staff member started the internal procedure to contest the termination. In the end, he was inform on 4 July 2012 that the conciliation had failed. The employee than filed a complaint with the ILO, on which is decided on 30 June 2015.

Receivability

CTA submits that the complaint has been filed too late. According to the statute of the ILO, the complaint should have been filed within 90 days. Counting from 4 July 2012, 3 October 2012 is too late, thus CTA. The ILO states that the time limits are binding. An exception to this rule can only be made in case the staff member has not been informed about the impugned decision in due time, or when the employer has mislead the staff member, for example by providing the staff member with incorrect information. The latter applied to this situation. The staff regulations, applicable within CTA, mention a period of 3 months for the staff member to start the procedure at the ILO. The staff member acted on this. The complaint therefore is considered to be filed timely, and will be judged on its merits.

The termination of the appointment

First of all, the ILO states that it exercises only a limited power of review over the decision of the termination. Leaving aside certain exceptions, the ILO won’t judge whether the termination is reasonable. She does judge whether the formal aspects and rules are taken into account. Then, the ILO points out that, based on established case law, an international organisation must give its staff members, especially those in their trial period, guidance, instructions and advice as to the performance of their duties. The staff member is entitled to have objectives so that he knows how his performance is assessed. A staff member whose performance is not considered satisfactory must be informed in a timely manner so that improvement is still possible, and a termination of the work relation can be avoided. CTA failed to do all this. The ILO considers this to be a breach of the duty of care of CTA towards its staff member. Considering that it is unsure whether the appointment would have been confirmed after the trial period in case CTA would have complied with her duty of care, the compensation is limited to the remaining salary over the trial period. Besides, CTA has to pay the staff member € 5.000,- in compensation for moral injury, as well as € 1.000,- for the costs made by him.