Ä¢¹½ÊÓƵAT Held or Ä¢¹½ÊÓƵDT Pronouncements
As a preliminary matter, the Appeals Tribunal dismissed the Appellants' requests for an oral hearing on grounds that an oral hearing would not be expeditious and that in light of comprehensive written submissions nothing would be gained from hearing the Appellants¡¯ counsel in person.
The Appeals Tribunal found that in the absence of an express promise of renewal of the Appellants¡¯ fixed-term appointments, the Appellants did not have a legitimate expectation of renewal of their fixed-term contracts. The statements giving assurances to Ä¢¹½ÊÓƵOPS staff members were not made by a Ä¢¹½ÊÓƵOPS official with the authority to renew the Appellants' fixed-term appointments, but by an official within OICT. As such, the assurances were incapable of creating legal obligations or of giving rise to a legitimate expectation by the Appellants of their renewal.
The Appeals Tribunal further held that the Ä¢¹½ÊÓƵDT did not err in considering that Ä¢¹½ÊÓƵOPS provided valid reasons for the abolition of the Appellants¡¯ posts. Ä¢¹½ÊÓƵOPS was to lose its contracted work for OICT as a result of which Ä¢¹½ÊÓƵOPS decided to abolish the posts that had been established to provide particular IT services to OICT. The fact that after their separation from Ä¢¹½ÊÓƵOPS the Appellants were immediately hired by a private company to provide the same services to OICT was not, as alleged by them, a ¡°legal fraud¡± committed by Ä¢¹½ÊÓƵOPS. The Appeals Tribunal found that the Appellants¡¯ posts were not ¡°converted¡± as opposed to having been abolished. The Appellants were no longer Ä¢¹½ÊÓƵOPS staff members but contractors working for OICT. While OICT had an ongoing need for the services that the Appellants had performed, it could not sustain the cost of doing so through the agency of Ä¢¹½ÊÓƵOPS by which the Appellants had been employed.
The Appeals Tribunal dismissed the appeals and affirmed the Ä¢¹½ÊÓƵDT Judgments.
Decision Contested or Judgment/Order Appealed
Ms. Fernandez and Ms. Delgado Castillo contested before the Ä¢¹½ÊÓƵDT, by way of two separate applications, the decisions not to renew their respective fixed-term appointments beyond 31 August 2022 due to the abolition of their posts.
At the time of their separation from service, Ms. Fernandez and Ms. Delgado Castillo were part of a group of Ä¢¹½ÊÓƵOPS staff members providing IT services to the Office of Information Technology Services (OICT) by means of Financial Agreements between Ä¢¹½ÊÓƵOPS and OICT. Following their separation, Ms. Delgado Castillo and Ms. Fernandez immediately joined a private company, providing the same services to OICT.
By Judgment No. Ä¢¹½ÊÓƵDT/2023/094 and Judgment No. Ä¢¹½ÊÓƵDT/2023/1062, the Ä¢¹½ÊÓƵDT dismissed the applications.
The Ä¢¹½ÊÓƵDT found that the decisions not to renew the appointments were lawful. In particular, the Ä¢¹½ÊÓƵDT found that Ms. Fernandez and Ms. Delgado Castillo failed to demonstrate that they had been promised a renewal of their fixed-term appointments; and that the reason provided by Ä¢¹½ÊÓƵOPS for the non-renewal decisions was unlawful and unsupported by the facts. The Ä¢¹½ÊÓƵDT also held that Ms. Fernandez and Ms. Delgado Castillo failed to demonstrate that any alleged procedural irregularities had rendered unlawful the abolition of their posts and, consequently, also the non-renewal decisions. Finally, the Ä¢¹½ÊÓƵDT noted that Ms. Fernandez and Ms. Delgado Castillo did not present any evidence showing that the non-renewal decisions resulted from discrimination against them.
Ms. Fernandez and Ms. Delgado Castillo both filed separate appeals against the respective Ä¢¹½ÊÓƵDT Judgments.
Legal Principle(s)
The statutory test for whether to depart from the default position of appeals being dealt with on the papers is set out in Article 18(1) of the Ä¢¹½ÊÓƵAT¡¯s Rules of Procedure. The test is whether holding an oral hearing of the appeal will be both expeditious and fair in all the circumstances.
In order to create a legitimate expectation of a renewal of a contract after its expiration, assurances must have been given in writing to the affected staff and quite specific as to the duration of the promised renewal, and such assurances should be from someone having the authority to give them.