Judgment No. 4456
Decision
1. The decision of 13 July 2018 to summarily dismiss the complainant and the decision of 28 October 2019 to dismiss her appeal are set aside.
2. In furtherance of what is said in consideration 20 of the judgment, the complainant shall deliver to UNWTO her claim for material damages, UNWTO shall reply within 60 days and within that period UNWTO shall pay to the complainant such sums, if any, it admits to be due. In the event that the complainant’s claim for material damages is not satisfied by this process, the parties are to forward to the Tribunal their respective documents to enable the Tribunal to finally determine and assess such material damages as may be payable.
3. UNWTO shall pay the complainant 50,000 euros moral damages.
4. UNWTO shall pay the complainant 8,000 euros costs.
Summary
The complainant contests the decision to summarily dismiss her for misconduct.
Judgment keywords
Keywords
complaint allowed; disciplinary measure; summary dismissal
Consideration 2
Extract:
The complainant requests an oral hearing under Article 12, paragraph 1, of the Tribunal’s Rules. The Tribunal however notes that the parties have presented ample submissions and documents to permit the Tribunal to reach an informed decision on the case. The request for an oral hearing is therefore refused.
Keywords
oral proceedings
Consideration 15
Extract:
In one of the Tribunal’s earlier reported cases, Judgment 203 at consideration 2, the principle of proportionality was discussed in the context of the imposition of the disciplinary sanction of summary dismissal. The Tribunal noted that the imposition of the disciplinary sanction of discharge or summary dismissal could cause serious harm to the staff member and her or his family. The Tribunal observed that it was necessary for the penalty to be proportionate to the fault and that, in that case, the complainant’s misconduct could not be evaluated without taking into account the extenuating circumstances.
Reference(s)
ILOAT Judgment(s): 203
Keywords
proportionality; disciplinary measure; summary dismissal
Considerations 16-17
Extract:
The failure of the complainant to discharge her duties in the manner specified in the charges had to be viewed in the context of the chief executive officer of the Organization, Mr R., knowing mostly how those duties were being performed, approving of how those duties were being performed and, at least in some respects, having instructed the complainant to perform them.
[…] The failure of the Secretary-General to pay any regard to Mr R.’s evidence was a serious flaw in the decision to summarily dismiss the complainant. That decision should be set aside.
Keywords
proportionality; mitigating circumstances; summary dismissal
Consideration 18
Extract:
Having regard to the circumstances in which she was summarily dismissed, it is extremely unlikely a satisfactory working relationship could be established between the complainant and those who facilitated that dismissal, including the incumbent Secretary-General (see Judgment 4310, consideration 13). Accordingly no order of reinstatement should be made.
Reference(s)
ILOAT Judgment(s): 4310
Keywords
reinstatement
Consideration 20
Extract:
In its pleas, UNWTO did not come to grips with any of the specifics of the complainant’s claims for material damages. The amounts are potentially significant. It is desirable the Tribunal has the benefit of as full an account from the complainant as possible of the amounts claimed and their justification, and submissions from the Organization responding, in detail, to each element of the claim for material damages and the quantification of the amount claimed. An order will be made to facilitate this process.
Keywords
material injury; summary dismissal
Consideration 21
Extract:
The complainant is entitled to moral damages for the undoubted trauma and associated distress arising from and associated with her unlawful summary dismissal after 27 years of service at UNWTO and the consequential need for her to relocate to Mexico.
Keywords
moral injury; summary dismissal
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