Judgment No. 4065
Decision
1. The impugned decisions of 20 April and 29 May 2017 are set aside, as is the initial decision of 17 September 2014 to dismiss the complainant.
2. The matter is remitted to the FAO in accordance with consideration 8 of the judgment.
3. The FAO shall pay the complainant moral damages in the sum of 12,000 euros.
4. It shall also pay him 1,000 euros in costs.
5. All other claims are dismissed.
Summary
In his second complaint, the complainant challenges the decision to dismiss him, while he was on sick leave, for misconduct. In his third complaint, he challenges the dismissal decision on the merits.
Judgment keywords
Keywords
complaint allowed; decision quashed; case sent back to organisation; termination of employment; misconduct; sick leave
Consideration 3
Extract:
The complainant filed the present complaints with the Tribunal before the related proceedings before the Appeals Committee were concluded. The Appeals Committee subsequently issued reports on the appeals and the Director-General took final decisions on the complainant’s second and third appeals on 20 April and 29 May 2017, respectively. The parties have had the opportunity to provide submissions on the final decisions. In the circumstances, the Tribunal will consider the second and third complaints as directed against the Director-General’s final decisions of 20 April 2017 and 29 May 2017, respectively.
Keywords
absence of final decision; direct appeal to tribunal; impugned decision
Consideration 4
Extract:
[The complainant's] purported challenge to the FAO’s decision to dismiss a colleague on disciplinary grounds is irreceivable as contrary to Article II, paragraph 5, of the Tribunal’s Statute because he seeks to challenge a decision which is not concerned with the non-observance of the terms of his appointment.
Reference(s)
ILOAT reference: Article II, paragraph 5, of the Statute
Keywords
receivability of the complaint; competence of tribunal; time bar; ratione materiae
Consideration 5
Extract:
Inasmuch as the complainant challenges a disciplinary decision, it is recalled that consistent precedent has it that such decisions are within the discretionary authority of the executive head of an international organization and are subject to limited review. The Tribunal will interfere only if the decision is tainted by a procedural or substantive flaw. Additionally, the Tribunal will not interfere with the findings of an investigative body in disciplinary proceedings unless there is manifest error (see, for example, Judgment 3872, under 2).
Reference(s)
Jugement(s) TAOIT: 3872
Keywords
inquiry; disciplinary procedure; judicial review; discretion; procedural flaw; investigation
Consideration 8
Extract:
The order setting aside the 17 September 2014 decision is not intended to reinstate the complainant or confer an entitlement to salary or other emoluments [...] (see Judgment 3731, under 9).
Reference(s)
Jugement(s) TAOIT: 3731
Keywords
reinstatement
Consideration 9
Extract:
Additionally, the complainant’s request that the FAO hold the officials responsible for the contested decision accountable for their breach of the rules and regulations and for acting in bad faith is rejected, as is his request that the Tribunal order the FAO to issue an official announcement to clear his reputation, as the Tribunal has no jurisdiction to issue injunctions of this kind (see, for example, Judgment 2636, under 13).
Reference(s)
Jugement(s) TAOIT: 2636
Keywords
competence of tribunal; injunction; ratione materiae
Consideration 8
Extract:
It is observed that [the administration] informed the complainant [...] that the discussion pursuant to Manual paragraph 330.3.26 was not mandatory. [...] This was mistaken as the discussion under Manual paragraph 330.3.26 is mandatory because of the language of that provision, which is in contradistinction to the language contained in Manual paragraph 330.3.27. Moreover, it was intended to confer a right on the complainant to complete his defence orally in a discussion with the officer who initiated the disciplinary procedure.
This right was denied and this is a material flaw which requires setting aside the impugned decision in both complaints as well as the initial decision of 17 September 2014. The case will be remitted to the FAO to complete the process by complying with Manual paragraph 330.3.26 and the following paragraphs of the procedure.
Keywords
case sent back to organisation
Consideration 1
Extract:
[The complainant's] claims of harassment are [...] irreceivable [...] pursuant to Article VII, paragraph 1, of the Tribunal’s Statute because there are no final decisions on them.
Keywords
final decision
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