Judgment No. 4519
Decision
1. The decision of the Secretary-General of ITU of 2 August 2021 is set aside, as are the decisions of 10 November 2020 and 6 January 2021.
2. ITU shall pay the complainant material damages and interest thereon, calculated as indicated in consideration 13 of the judgment.
3. ITU shall pay the complainant 15,000 euros in moral damages.
4. It shall also pay her 8,000 euros in costs.
5. All other claims are dismissed.
Summary
The complainant challenges the decision to suspend her without pay.
Judgment keywords
Keywords
complaint allowed; suspension without pay
Consideration 2
Extract:
According to the Tribunal’s case law, the suspension of a staff member is an interim measure which need not necessarily be followed by a substantive decision to impose a disciplinary sanction (see Judgments 1927, consideration 5, and 2365, consideration 4(a)). Nevertheless, since it imposes a constraint on the staff member, suspension must be legally founded, justified by the requirements of the organisation and in accordance with the principle of proportionality. A measure of suspension will not be ordered except in cases of serious misconduct. Such a decision lies at the discretion of the organisation’s executive head. It is subject therefore to only limited review by the Tribunal and will not be set aside unless it was taken without authority or in breach of a rule of form or of procedure, or was based on an error of fact or of law, or overlooked some essential fact, or was tainted with abuse of authority, or if a clearly mistaken conclusion was drawn from the evidence (see aforementioned Judgment 2365, consideration 4(a),
and Judgments 2698, consideration 9, 3037, consideration 9, and 4452, consideration 7).
Reference(s)
Jugement(s) TAOIT: 1927, 2365, 2698, 3037, 4452
Keywords
proportionality; suspension; role of the tribunal
Consideration 5
Extract:
The wording of Staff Rule 10.1.3(a) makes plain that the suspension provided for under Staff Rule 10.1.3 is intended as a measure that may be taken “pending an investigation” and that the staff member concerned may thus be suspended – whether with or without pay – only until its end. As the Tribunal has already held concerning the application of similarly worded staff rules in another organisation, such a reference to the possibility of suspending a staff member until the end of the investigation into the actions of which she or he is suspected cannot be interpreted as authorising an extension of that suspension beyond the end of the investigation in question and, in particular, during any disciplinary proceedings subsequently brought against the staff member concerned (see Judgment 3880, consideration 20).
Contrary to what the Organisation submits, this approach does not contradict that adopted in previous cases concerning ITU. Although in Judgment 3138 the Tribunal accepted the lawfulness of a suspension ordered after the delivery of the report into the investigation of the acts of which the complainant was accused in that case, it did so on the ground, set out in consideration 11 of that judgment, that an “additional investigation” was planned when the decision was taken. Nor is Judgment 2601, also quoted by ITU, relevant since it concerned a challenge to decisions taken at the end of a disciplinary procedure and, as pointed out in consideration 13 thereof, did not call into question the lawfulness of the prior suspension. Finally, although ITU also refers to Judgment 3502, concerning another organisation where the suspension of staff members is governed by similar provisions, the Tribunal observes that the suspension at issue in that judgment was ordered pending the outcome of an investigation and that, although the suspension was extended until the end of the subsequent disciplinary procedure, the plea was not framed in the same way in the other case.
Reference(s)
Jugement(s) TAOIT: 2601, 3138, 3880
Keywords
inquiry; patere legem; suspension
Consideration 6
Extract:
ITU argues in its submissions that the reference to the duration of the investigation in the aforementioned Staff Rule 10.1.3(a) should be interpreted flexibly, since the intention behind that provision is to allow the organisation to continue a staff member’s suspension until the end of any disciplinary proceedings initiated as a result of the investigation itself.
However, it is well established in the case law that where the wording of a provision is clear, the Tribunal will not engage in any constructive interpretation of this kind (see, for example, Judgments 1125, consideration 4, or 3358, consideration 5). The reference to the duration of the investigation in Staff Rule 10.1.3(a) is unambiguous. Furthermore, the Tribunal considers that, contrary to what ITU submits, there may be a rationale behind the limitation of the length of the suspension to that of the investigation that explains the content of the provision in question. Indeed, the main aim of suspending a staff member suspected of misconduct is often to prevent her or him taking any steps to destroy evidence or place witnesses under pressure. However, the issue of preserving the evidence no longer exists in the same way once the investigation is over. Lastly, while the Tribunal is aware of the difficulty that the return to duty of a staff member after her or his provisional suspension may cause in some cases, it is not the Tribunal’s role to palliate any defects in a provision, it being for the competent authorities of ITU to remedy them if need be.
Reference(s)
Jugement(s) TAOIT: 1125, 3358
Keywords
interpretation; suspension; interpretation of rules
Consideration 8
Extract:
[T]he complainant submits that the conversion of her initial suspension into a suspension without pay breached the requirement of Staff Rule 10.1.3(b) that a suspension “should normally not exceed three months”.
[...]
Admittedly, as ITU points out, the three-month limit is merely a guideline. It is not mandatory as it applies only “normally” and a suspension may well be longer in certain cases. Nevertheless, if the provision in question is not to be rendered meaningless, it cannot be considered that the Organisation may disregard the objective of complying with this maximum guideline period without restriction or justification.
Keywords
suspension without pay
Consideration 9
Extract:
The Tribunal [...] observes that a total of 15 months elapsed between the start of the complainant’s suspension, on 1 May 2020, and the end of the suspension, which in this case coincided with the date on which her dismissal took effect, namely 31 July 2021. That is an unreasonably long time. It not only grossly exceeded the aforementioned three-month period, but also disregarded the inherently short-term nature of such a suspension (see, for comparable cases, abovementioned Judgment 2698, consideration 14, or Judgment 3035, consideration 18). This duration, which can largely be explained by the likewise unusually slow disciplinary procedure, is all the more egregious in the present case because the complainant was deprived of any professional income from 10 November 2020, that is to say for most of the period in question.
Reference(s)
Jugement(s) TAOIT: 2698, 3035
Keywords
injury; suspension without pay
Consideration 11
Extract:
The confirmation in the investigation report that the allegations against the complainant were substantiated does not, in itself, constitute a relevant new fact. It had no bearing on the nature of the misconduct of which the complainant was accused and could not therefore allow the circumstances of the case to be treated as exceptional when they had not been before. Moreover, it should be observed that the findings of the investigation in question merely corroborated the view that the ITU authorities must be deemed to have held when the initial decision was taken to suspend the complainant with pay as, under Staff Rule 10.1.3(a), the Secretary-General may suspend a staff member only “if [she or he] or the Director of the Bureau concerned is of the opinion that the charge is well-founded”, and that is a prerequisite for a measure of this type to be lawful (see, for example, Judgment 2892, consideration 14).
In considering that [...] he could convert the initial suspension with pay into a suspension without pay in the light of the findings of the investigation, the Secretary-General therefore committed an error of law w, in addition to those already criticised [...].
Reference(s)
Jugement(s) TAOIT: 2892
Keywords
suspension without pay
Consideration 14
Extract:
The Tribunal observes that the conversion of the initial suspension with pay – which, in the light of the evidence, was in itself entirely legitimate – into a suspension without pay did not have the effect of significantly exacerbating the damage already inevitably done to the complainant’s professional reputation, since, when a member of staff is suspended, that damage arises primarily from the very fact that she or he is removed from duty. However, the sudden and prolonged loss of all pay resulting from that measure was bound to cause the complainant severe anxiety and hardship. Moreover, the unreasonable length of the suspension, considered as a whole, had the effect of keeping the complainant in a protracted state of uncertainty about her professional future, which was especially difficult since she was responsible for a child.
Keywords
moral injury; suspension without pay
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