Judgment No. 4452
Decision
1. The decision of 16 May 2018 to suspend the complainant without pay is set aside.
2. UNWTO shall pay the complainant 8,000 euros in costs.
3. All other claims are dismissed.
Summary
The complainant contests the decisions to suspend him with pay and then without pay during the disciplinary procedure for misconduct as well as the appointment of a colleague to what he describes as his “job and functions”.
Judgment keywords
Keywords
complaint allowed; misconduct; disciplinary procedure; suspension without pay
Consideration 3
Extract:
[A] power to suspend a member of staff as an incidence of disciplinary proceedings potentially leading to the application of a sanction is conferred by the Staff Rules. There is no express qualification on the exercise of that power precluding suspension while a member of staff is on sick leave. No reason of substance is advanced as to why that qualification should be implied nor any reference to Tribunal case law leading to the same result.
Keywords
sick leave; suspension
Considerations 6-7
Extract:
The power to suspend is enlivened when the Secretary-General considers, in the specified circumstances, that continuation in service of the official may prejudice the service. The power is founded on the opinion of the Secretary-General on the question of prejudice. It is tolerably clear that a decision to suspend without salary when there might be summary dismissal, is linked to the power to make the summary dismissal retroactive to the date of suspension. The rationale appears to be that if retroactive summary dismissal is the ultimate outcome, circumstances should not be created where the suspended official has been paid but for a period when he was not in employment, at least notionally, and recovery of that payment may be problematic.
When the complainant was suspended with pay […], the approach of the Secretary-General was, on its face, quite orthodox and in conformity with Staff Rule 29. First, the Secretary-General said that a sanction was being considered and identified it as summary dismissal. Notwithstanding, a decision was not then made though it could have been, to suspend the complainant without pay. Secondly the Secretary-General addressed the question of prejudice and gave a rational explanation why the interests of the service may be prejudiced if the complainant continued in service.
Keywords
suspension; discretion; suspension without pay
Consideration 8
Extract:
Sick leave simply authorises a member of staff not to attend for work. While suspension requires a member of staff not to attend work, its legal effect is much wider and impacts upon the capacity of a member of staff to participate in the workings of the organisation more generally. In the circumstances of this case, the fact that the complainant was on sick leave for the then identified short period had no material bearing on whether he should be suspended.
Keywords
sick leave; suspension
Considerations 9 & 11
Extract:
This leads to a consideration of whether the decision […] to suspend the complainant without pay was lawful. It was not. […]
[The arguments invoked by the Secretary-General] reveal, at the very least, considerable irritation at the complainant’s conduct. But whether or not it was justified is, for the purposes of the present discussion, irrelevant. [T]he discretionary power to suspend depends on an opinion that the continuation in service of the official may prejudice the service. That assessment had already been made on 4 May 2018. Moreover, at that time and with full knowledge that the ultimate sanction may be summary dismissal, an election was plainly made by the Secretary-General not to suspend without pay. All that had occurred in the intervening period was that the complainant conducted himself in a way that attracted very firm criticism by the Secretary-General. It was the criticism of the conduct that, in the main, was comprehended by the expression “[i]n view of the above” identifying the reason or reasons for the decision to suspend without pay. It is tolerably clear that the alteration of the terms of the suspension was simply a sanction for the criticised conduct. That provided no lawful basis for that decision. The decision to suspend without pay should be set aside.
Keywords
suspension without pay
Consideration 15
Extract:
The complainant would, in the ordinary course, be entitled to material damages being the income he would have received from the date of suspension without pay until the date of his dismissal, if lawful.
Keywords
material injury; suspension without pay
Consideration 16
Extract:
The complainant also seeks additional moral damages and exemplary damages. These damages are sought on the basis of “the emotional and financial stress placed on [the complainant] and his family [...] and as [the unlawful decisions] severely injured his professional reputation and dignity”. There is no obvious relationship, nor any proved, between the matters just referred to and the unlawful suspension without pay for approximately two and a half months being the period between the time of the decision to suspend without pay and the time of the decision to dismiss. No moral or exemplary damages are warranted.
Keywords
moral injury; exemplary damages; suspension without pay
Consideration 17
Extract:
The complainant seeks the production of certain documents concerning the engagement of the consultancy firm. He does not establish the potential relevance of these documents to the issues in this proceeding. Accordingly, this request is refused.
Keywords
disclosure of evidence
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