2022-UNAT-1217, Ajay Sud
UNAT disagreed. First, the Tribunal reasoned that the JAB did not engage in a critical analysis of the facts of the case and did not apply the law to the facts in order to ascertain whether the exercise of discretion was lawful. UNAT concluded that the JAB Decision was arbitrary and did not meet the minimum requirements of providing a reasoned analysis. Second, on the merits, UNAT found the Administration did not notify the staff member of his shortcomings in sufficient time. Neither did It provide the staff member with explicit measures against which his performance would be evaluated. Third, the Administration failed to provide the staff member any meaningful opportunity to remedy his performance shortcomings. Therefore, UNAT explained although the Administration is vested with the authority to terminate an appointment during probation, such authority must still be exercised reasonably. In conclusion, UNAT granted the appeal and reversed the JAB decision. The decision to terminate the appointment was rescinded, and as an alternative to rescission, the Administration could elect to pay compensation equivalent to two years’ net base salary together with applicable interest.
A staff member contested the decision of the Administration to terminate his employment for unsatisfactory performance during his probationary period. The JAB dismissed his appeal finding no irregularities in the staff member’s termination. The JAB explained it was within the wide discretionary powers of the Administration to not confirm the Fixed Term Appointment (FTA) of a staff member during the 12-month probationary period.
The first instance body must provide a critical analysis of the facts and apply the law to the facts of a case. It cannot simply state the facts, cite the law and jump to a conclusion. It must provide a reasoned analysis. Although the Administration has discretion to terminate a staff member's service during probation for unsatisfactory performance, such discretion must be exercised legally and reasonably. For termination on account of performance shortcomings, a staff member must be given clear information and sufficient notice on what the performance expectations are, a performance improvement plan if necessary, and a meaningful opportunity and adequate time to remedy any performance shortcomings.
The appeal is granted, and the JAB Decision is reversed. The decision to terminate the appointment is rescinded, and in lieu compensation is set at two years’ net base salary plus applicable interest.