Judgment No. 1441
Decision
THE COMPLAINT IS DISMISSED.
Consideration 16
Extract:
The complainant relies on a rule which says that members of the Disciplinary Committee [composed in this instance of staff members from headquarters and constituted there] should come from the staff of the Regional Office and have been locally recruited. The Tribunal considers that "the rule [in question] is not binding" and states that "in any event the complainant has failed to show how the membership of the committee [composed in this instance of staff members from headquarters and constituted there] might have proved prejudicial to the proper and independent consideration of his case."
Reference(s)
Organization rules reference: UNESCO STAFF RULE 110.2(D)
Keywords
injury; lack of injury; advisory body; burden of proof; duty station; disciplinary procedure; safeguard; composition of the internal appeals body
Consideration 17
Extract:
"Although an explanation of the reasons for an administrative decision affords an essential safeguard of the staff member's rights, consistent precedent has it that the form the explanation takes will depend on the nature of the decision and the context in which it is taken. Here UNESCO is right in stating that each successive decision, from the provisional suspension from duty to the final act of dismissal, was taken in a context that the complainant was quite well aware of. The suspension came after the questioning of him by the inspectors; the dismissal after the report by the Disciplinary Committee; and the final confirmation of dismissal after the Appeals Board hearings. The text of each decision so explicitly cites the material background that he may not properly contend he was caught unawares or profess ignorance of the reasons for each decision and what it meant."
Keywords
duty to substantiate decision; case law; organisation's duties; termination of employment; purport; safeguard
Consideration 18
Extract:
"The complainant held a fixed-term appointment. His proven shortcomings and misconduct were undoubtedly such that the organization might have refused without further ado to extend his appointment. As the Tribunal has always acknowledged, an organisation has discretion in the matter and, as many rulings bear out, it may refuse renewal on grounds of unsatisfactory performance or misconduct: for a recent example see Judgment 1405."
Reference(s)
ILOAT Judgment(s): 1405
Keywords
case law; contract; fixed-term; non-renewal of contract; misconduct; unsatisfactory service; discretion
Consideration 20
Extract:
The decision to dismiss [the complainant] for serious misconduct was "fully warranted by the facts that came to light at the various stages of the disciplinary proceedings. Even though doubts lingered as to whether the complainant [had embezzled funds] the way he kept the books was still inadmissible and can only have been intended to cover up actual fraud. In view of the complainant's [...] poor performance [his behaviour] showed a lack of conscientiousness and failure to come up to the ethical standards of public service. Moreover [...] his behaviour severely damaged the image of the organization, which he was not just working for but representing."
Keywords
termination of employment; misconduct; serious misconduct; unsatisfactory service; conduct; organisation's reputation
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