Judgment No. 2351
Decision
1. The disciplinary sanction and the decision not to renew the complainant's contract are set aside.
2. The Union shall pay the complainant compensation calculated as explained under 9.
3. It shall also pay him 3,000 Swiss francs in costs.
4. All other claims are dismissed.
Considerations 7(c) and 8(a)
Extract:
When he was recruited the complainant provided a copy of a diploma but its authenticity was questioned a few years later. The matter was queried with the educational establishment and the Secretary-General then issued the complainant a written censure. The Tribunal considers that "there was not sufficient proof either that the diploma was not issued to the complainant [...] or that the latter had been informed that, according to the [educational establishment], he was not entitled to receive it. The Secretary-General might have enquired further into the aspects which remained uncertain, but did not do so. The 'likelihood' referred to by the Secretary-General, if it is not incontrovertibly ascertained, cannot make up for the lack of conclusive evidence. Based as it is on an arbitrary appraisal of the facts, the impugned decision as far as it concerns the disciplinary sanction must therefore be set aside. Although it did not give rise to a written decision, the non-renewal of the short-term contract was based on charges levelled against the complainant in the course of the disciplinary procedure. The mere cancellation of the disciplinary sanction must entail that of the decision of non-renewal."
Keywords
decision; grounds; implied decision; decision quashed; lack of evidence; inquiry; organisation's duties; terms of appointment; contract; degree; short-term; non-renewal of contract; disciplinary measure; disciplinary procedure; warning; executive head; bias; consequence; right; investigation
Consideration 7(b)
Extract:
Disciplinary sanctions presuppose that a staff member has committed a fault for which he must be punished. Contrary to what the ITU maintains, however, the burden of proof rests with the Administration, since the complainant must enjoy a presumption of innocence and the protection afforded by the principle in dubio pro reo.
Keywords
presumption of innocence; in dubio pro reo
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