Judgment No. 4457
Decision
1. The decisions of the Director-General of UNESCO of 10 July 2018, 8 November 2016 and 14 February 2017 are set aside.
2. All documents relating to the disciplinary proceedings brought against the complainant shall be removed from his personal file.
3. UNESCO shall pay the complainant material damages calculated in the manner stated in consideration 26 of the judgment.
4. The Organization shall pay the complainant 40,000 euros in moral damages.
5. It shall also pay him 3,000 euros in costs.
6. All other claims are dismissed.
Summary
The complainant challenges the decision to summarily dismiss him.
Judgment keywords
Keywords
complaint allowed; disciplinary measure; summary dismissal
Consideration 2
Extract:
In its further submissions, UNESCO has requested that the Tribunal disregard the last paragraph of the complainant’s rejoinder, in which his representative discloses the content of exchanges between the parties made in the context of an attempt to settle the dispute amicably.
The complainant’s objection to the receivability of this request – in which he seeks to rely on the Tribunal’s case law set out, in particular, in Judgment 3648, consideration 5, according to which an organisation may not raise an objection to receivability in its surrejoinder where it could have done so in its reply – is unfounded. It is true that what was held with regard to the surrejoinder would likewise apply to such further submissions. However, the request in question cannot be regarded as an objection to receivability and is based, moreover, on new information provided by the complainant in his rejoinder. The request is therefore admissible, even though it would have been more natural for UNESCO to make it in the surrejoinder.
As it is, the request is justified. As the Tribunal has already stated, since the confidentiality of amicable dispute settlement procedures must be preserved to increase the likelihood of their success, information relating to any negotiations conducted by the parties with a view to resolving a dispute referred to the Tribunal must not be disclosed in the proceedings before it (see Judgment 3586, consideration 5).
The aforementioned paragraph of the rejoinder, which should indeed be disregarded, will not therefore be taken into consideration by the Tribunal.
Reference(s)
ILOAT Judgment(s): 3586, 3648
Keywords
rejoinder; additional written submissions; amicable settlement; confidentiality
Consideration 12
Extract:
In this case, the complainant’s misconduct clearly does not meet the criteria of gravity thus identified by the applicable provisions and the case law, especially given various mitigating circumstances from which, as the Appeals Board rightly pointed out in its opinion [...], the complainant should benefit.
Keywords
proportionality; mitigating circumstances
Consideration 20
Extract:
Under the Tribunal’s case law, although the disciplinary authority within an international organisation has a discretion to choose the disciplinary measure imposed on an official for misconduct, its decision must always respect the principle of proportionality which applies in this area (see, for example, Judgments 3640, consideration 29, 3927, consideration 13, and 3944, consideration 12).
Reference(s)
ILOAT Judgment(s): 3640, 3927, 3944
Keywords
proportionality; disciplinary measure
Consideration 24
Extract:
In view of the time which has passed since the events, the complainant’s age on the date of this judgment and the fact that he was employed under a fixed-term appointment, the Tribunal finds that it is not appropriate, in the circumstances of the case, to order the complainant’s reinstatement in the Organization.
Keywords
reinstatement
Consideration 26
Extract:
As regards material injury, the Tribunal observes that, from November 2016, the complainant was deprived of the remuneration he would ordinarily have received until the end of the contract in force at the time of his summary dismissal, which expired on 31 December 2017, and that he also lost a valuable opportunity to have his appointment subsequently renewed, given that his 26 years’ seniority with UNESCO meant that he could arguably have been expected to continue his career there until he retired.
Keywords
material injury; summary dismissal
Consideration 27
Extract:
The penalty of summary dismissal also caused the complainant obvious moral injury since it seriously damaged his honour and reputation of itself.
Keywords
moral injury; summary dismissal
Consideration 27
Extract:
[The moral] injury was further aggravated in this case by the abrupt, unnecessarily humiliating manner in which this penalty was applied. The complainant submits, without being effectively contradicted by the Organization, that he was forced to leave UNESCO premises under the watch of security officials as soon as he was notified of it. The Tribunal points out that, unless there is a justified need, the use of such procedures is strongly condemned in its case law (see, for example, Judgments 2892, consideration 26, or 3169, consideration 21).
Reference(s)
ILOAT Judgment(s): 2892, 3169
Keywords
coercive measures
Consideration 28
Extract:
First, since the beginning of the dispute, the Organization has refused to provide the complainant with the recommendation that he be summarily dismissed issued by the Director of the Bureau of Human Resources Management to the Director-General on the basis of paragraphs 11 and 14 of Item 11.3 of the Human Resources Manual. However, it is settled case law that a staff member must, as a general rule, have access to all the evidence on which an authority bases its decision against her or him and that the employing organisation cannot withhold such evidence on the grounds of confidentiality (see, for example, Judgments 2700, consideration 6, 3863, consideration 18, or 4293, consideration 4). UNESCO, which in this case confines itself essentially to arguing that the aforementioned recommendation is part of an “internal and confidential procedure”, does not thus advance a sound reason for refusing to provide that document.
Second, it appears that the complainant was not given the opportunity to view, as permitted under Staff Rule 104.10, the personal file that UNESCO held on him. Although the Organization states in its surrejoinder that the complainant could “inspect his personal file at any time”, the evidence shows that he could not actually exercise that right in practice because he was prohibited from entering the Organization’s premises and because of the failure to respond to the steps he had taken, in particular in the run-up to the Appeals Board hearing, with a view to gaining access to that file.
Reference(s)
ILOAT Judgment(s): 2700, 3863, 4293
Keywords
disclosure of evidence; confidentiality
Consideration 29
Extract:
It is settled case law that officials are entitled to have their appeals examined with the necessary speed, in particular in view of the nature of the decision which they wish to contest (see, for example, Judgments 2902, consideration 16, 4063, consideration 14, or 4310, consideration 15).
In this case, although the complainant had referred the matter to the Appeals Board on 14 April 2017, the Director-General, as has been stated, did not adopt a decision on this appeal until 10 July 2018, almost 15 months later.
The Tribunal finds that, while it may not appear unreasonable in absolute terms, this delay is excessive in view of the nature of the case, since it concerned a summary dismissal on disciplinary grounds.
Reference(s)
ILOAT Judgment(s): 2902, 4063, 4310
Keywords
moral injury; delay in internal procedure
Consideration 31
Extract:
[T]here are no grounds for awarding him costs for the internal appeal proceedings. Under the Tribunal’s case law, costs of this kind may be awarded only in exceptional circumstances (see, in particular, Judgments 4156, consideration 9, or 4217, consideration 12). Such circumstances are not evident in this case.
Reference(s)
ILOAT Judgment(s): 4156, 4217
Keywords
costs for internal appeal procedure
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