This case arises from the termination of the Applicant’s employment with the Bank for unsatisfactory performance subsequent to a special evaluation period provided for by his supervisors pursuant to PMS 4.01. The Applicant contends that the carrying out of the special evaluation program by the Respondent was defective to an extent that amounts to a deprivation of due process of law constituting a non-observance of his contract of employment and the terms of his appointment.

The Tribunal must consider first whether the application in this case is admissible, having regard to the fact that it was filed on May 6, 1983, more than ninety days after the Applicant received notice on January 20, 1983 of the Respondent’s acceptance of the recommendations of the Appeals Committee. Article II(2) of the Statute of the Tribunal permits the admission of a late application “under exceptional circumstances”. It appears that the lawyer who had originally assisted the Applicant informed the Executive Secretary of the Tribunal on March 24, 1983 that he could no longer act for the Applicant. Arrangements for the engagement of new lawyers were completed only on April 19, 1983. The Tribunal notes that the Respondent has raised no objection to the late filing of the application. Having regard to all the circumstances of the case – particularly the shortness of the delay – the Tribunal concludes that the application is admissible.On the merits of the case the Applicant first contends he was entitled to permanent employment (an expression apparently used by the Bank as interchangeable with “regular appointment”) with the Bank by virtue both of the Respondent’s assurances before and during his FOD assignment and his satisfactory performance in his FOD position.The Applicant also contended that the conduct of the Bank amounted to the conversion of his fixed-term contract into a permanent one. 

The Respondent contends that because there was no mutual agreement upon a contract of employment, there can be no finding of the non-observance of any such contract, so that the Tribunal must dismiss the application for want of jurisdiction. It should be noted that the Respondent has explicitly waived any objection to the Applicant’s failure to exhaust internal remedies, as otherwise required under Article II(2) of the Statute of the Tribunal. The Applicant asserts that there was a meeting of the minds, and a contract of employment formed, between the Applicant and the Respondent by virtue of what he characterized as an invitation by telex in May 1982 for an offer from the Applicant, an offer from the Applicant by his letter of June 2, 1982 stating his requested salary and other terms of employment, and an acceptance from the Respondent on October 15 by telex of the Chief of Agriculture Division “A”, SAPD.

The Applicant’s principal contention is that the termination of her employment was procedurally and substantively improper, and therefore constituted a non-observance by the Respondent of her contract of employment and terms of appointment. As to procedure, she claims that the letter informing her of termination was flawed, because it articulated a ground for dismissal – failure to respond to the Bank’s efforts – that is not a valid ground for termination of services. 

The first issue to be examined in this case is whether the Tribunal has legal power to reconsider and revise, in the manner requested by the Applicant, its judgment No. 11 of October 8, 1982.  The Applicant complains of certain actions which by the Applicant’s own admission were taken by the Respondent after the Tribunal decided his case.

The Respondent asserts that the present application is time-barred because: 1) The time for filing an application challenging termination based on unsatisfactory performance expired as of August 28, 1981, i.e. ninety days from the Vice President, AOP's, letter of May 28, 1981 confirming the Appeals Committee's recommendation; 2) The application filed with the Tribunal on December 11, 1981 should have been directed against the decision granting disability retirement. But since this was not the decision the Applicant challenged in her filing, she was time-barred in this respect also.
The Applicant contests the adverse determinations of the Vice President, AOP, against her and requests rescission of the decision terminating her employment due to unsatisfactory performance.

The Respondent’s answer states that “the issues in this case concern whether or not the Respondent failed to observe the contract of employment or terms of appointment (of the Applicant) when it gave him the option of accepting an assignment as Deputy Division Chief in the Latin-America and Caribbean Projects Department or the termination package” The first question to be examined is the legal status of that memorandum. The second question is whether is has been properly applied or observed.

Applicant’s contentions are that the Respondent (i) failed to provide adequate supervision; (ii) neglected to provide proper language training; (iii) failed to provide timely appraisals of the Applicant’s performance; (iv) failed to give reasonable notice prior to termination; and (v) based its decision to terminate the Applicant’s employment on personal prejudice. 

The principal issue before the Tribunal is whether Mr. Skandera's services were terminated “for any cause,” as provided in the letter offering him an appointment. The Bank has conceded that the reasons for its action were other than the one stated in the termination notice, namely, the request of the Government of Lesotho. The true reasons were those set forth in four written documents (referred to in paragraphs 9, 11, and 13 above), of which only the last was actually communicated to Mr. Skandera. Taking into consideration the arguments of the Applicant and the Respondent as set forth above, the Tribunal finds that reasonable grounds existed on which the Bank could validly reach a decision to terminate the appointment of Mr. Skandera. Although Mr. Skandera asserts that his services were needed and that the quality of his work was adequate and was indeed favorably regarded by some Lesotho officials, it is clear (and his letter of appointment explicitly so provides) that the authority to decide such matters lay with his supervisors at the Bank. Mr. Skandera claims that the Bank's decision to terminate his appointment was based upon such motives as hatred, malice, prejudice and bad faith. For the reasons already given, however, the Tribunal is of the view that the termination was not improperly motivated.

The issue before the Tribunal is whether the application in this case was filed within the proper time limit. 

The first consideration is whether the Bank was justified in its conclusion that the Applicant’s performance was unsatisfactory. The second question is whether the Respondent acted fairly in relation to the Applicant. At the beginning of that period of probation she was assigned non-secretarial duties; afterwards she was led to believe that the improvement in and concentration on her purely secretarial duties, together with an expression of regret for her unwise reaction in April, would result in confirmation; that such an outcome depended on current and future performance rather than past history.

The decision to terminate the Applicant's appointment was based on “his failure to give satisfactory service in the position he occupies”, as provided in Administrative Manual Statement No. 108. According to Article V, Section 5 (b) of the Bank's Articles of Agreement the President has the power to dismiss staff members if their services are unsatisfactory. The determination whether a staff member's performance is unsatisfactory is a matter within the Respondent's discretion and responsibility. The Administration's appraisal in that respect is final, unless the decision constitutes an abuse of discretion, being arbitrary, discriminatory, improperly motivated or carried out in violation of a fair and reasonable procedure.

The central issue before the Tribunal in this case is whether the Respondent has violated the contract of employment or terms of appointment of the Applicant by improperly terminating his employment for unsatisfactory performance and by making arrangements for this termination which in the Applicant's estimation fell short of those to which he was entitled under regulations and practice in force at the time of the termination.

Respondent requests dismissal of the application because it was not filed within the time prescribed by Article XVII or Article II, paragraph 2 of the Statute of this Tribunal, and because the Applicant failed to exhaust all other remedies available to her as required by Article II, paragraph 2 (i) of the Statute.

Applicants filed their applications on December 4, 1980, and thus, more than 90 days after the entry into force of the Statute under its Article XVII, that is to say by September 29, 1980. The Tribunal has no authority to consider applications filed after that date.

The Applicant claims his contract of employment was violated because his appointment was terminated without cause, with malice and bad faith, and with gross negligence. Applicant was denied due process by virtue of the procedure whereby his termination was effected. Although his notice of termination stated that it was at the request of the Lesotho Government, the World Bank now admits that this assertion was not the truth. The Bank also violated Applicant's contract of employment by failing, contrary to the rules in force, to make available to him automobile transportation when he asserted medical justification; and by otherwise creating conditions of employment which severely impaired his health and caused chronic injuries to his lung and knee.

For these reasons, the Tribunal unanimously decides: (1) that the Respondent shall pay Applicant a sum equal to three months' net base salary; and (2) that the application is otherwise rejected.

The Tribunal is presented in this, the first case to be decided by it, with the question whether the implementation in relation to the Applicants of the decisions adopted on May 25, 1979 by the Executive Directors of the Bank regarding tax reimbursement and salary adjustment amounts to non-observance by the Bank of the contracts of employment or terms of appointment of the Applicants. The legal issues involved in this question are basic and important. They do not lend themselves to summary treatment.