Judgment No. 4579
Decision
1. The impugned decision, as well as the 8 May 2019 decision of discharge, are set aside.
2. The Global Fund shall reinstate the complainant with effect as from 8 August 2019.
3. The case is sent back to the Global Fund for a new decision as indicated in consideration 8 of the judgment.
4. The Global Fund shall pay the complainant material damages to be determined on the basis of the criteria set out in consideration 9 of the judgment.
5. The Global Fund shall pay the complainant 2,000 euros in costs.
6. All other claims are dismissed.
Summary
The complainant challenges the decision to discharge him.
Judgment keywords
Keywords
complaint allowed; case sent back to organisation; reinstatement; disciplinary measure; sexual harassment
Consideration 1
Extract:
The complainant requests oral proceedings. Pursuant to Article V of the Statute of the Tribunal, “[t]he Tribunal, at its discretion, may decide or decline to hold oral proceedings, including upon request of a party”. In this case, the Tribunal finds the written submissions to be sufficient to reach a reasoned decision, and thus the request is rejected.
Keywords
oral proceedings
Consideration 3
Extract:
[A]ccording to the Tribunal’s case law, the verbatim record of the oral evidence gathered during disciplinary proceedings is not deemed strictly necessary. It is sufficient that the person charged in disciplinary proceedings be informed of the precise allegations made against her or him, provided with the summaries of the witnesses’ testimonies relied upon by the body in charge of the investigation, and enabled to comment on them (see Judgment 2771, consideration 18).
Reference(s)
Jugement(s) TAOIT: 2771
Keywords
evidence; due process; witness; investigation
Consideration 4
Extract:
The Tribunal’s case law has it that disciplinary decisions are within the discretionary authority of the executive head of an international organization and are subject to limited review. The Tribunal must determine whether a discretionary decision was taken with authority, was in regular form, whether the correct procedure was followed and, as regards its legality under the organization’s own rules, whether the organization’s decision was based on an error of law or fact, or whether essential facts had not been taken into consideration, or again, whether conclusions which are clearly false had been drawn from the documents in the dossier, or finally, whether there was a misuse of authority (see Judgment 3297, consideration 8, quoting Judgment 191). Additionally, the Tribunal shall not interfere with the findings of an investigative body in disciplinary proceedings unless there was a manifest error (see Judgments 4444, consideration 5, and 4065, consideration 5).
Reference(s)
Jugement(s) TAOIT: 191, 3297, 4065, 4444
Keywords
disciplinary procedure; discretion; role of the tribunal
Consideration 4
Extract:
The submission that the accuser was in bad faith and exaggerated the gravity of the incident is completely devoid of merit. The good faith of the accuser was never questioned during the disciplinary proceedings, nor does the complainant provide evidence of bad faith in the present complaint as required by the case law (see, for example, Judgment 3902, consideration 11).
Reference(s)
Jugement(s) TAOIT: 3902
Keywords
harassment; bad faith
Consideration 7
Extract:
The complainant seeks reinstatement. As a rule, an official dismissed on disciplinary grounds whose dismissal is set aside is entitled to be reinstated. However, the Tribunal may refuse to make such an order if reinstatement is no longer possible or if it is inappropriate. According to the Tribunal’s case law, reinstatement is inadvisable when an employer has valid reasons for losing confidence in an employee (see Judgment 4310, consideration 13).
In the present case, considering that the complainant held a permanent appointment and that the sanction of discharge has been annulled, the order of reinstatement is possible and appropriate.
Reference(s)
Jugement(s) TAOIT: 4310
Keywords
reinstatement
Consideration 9
Extract:
The organization shall pay the complainant the equivalent of the salary and various indemnities, net of any income from other employment received as from the date of the discharge and until the date of effective reinstatement and should restore his pension rights. All these amounts shall bear interest at the rate of 5 per cent per annum as from the date on which they fell due until the date of their payment.
Keywords
salary; material damages; interest on arrears
Consideration 11
Extract:
According to the Tribunal’s case law, the suspension of an official is a provisional measure, which in no way prejudges the decision on the substance of any disciplinary measure against her or him. However, as a restrictive measure on the staff member concerned, the suspension must have a legal basis.
Keywords
suspension
Consideration 12
Extract:
The further claims for an apology and for declarations of law must be rejected as the first one is beyond the competence of the Tribunal (see Judgment 4478, consideration 4) and the second one is irreceivable (see Judgment 4246, consideration 11).
Reference(s)
Jugement(s) TAOIT: 4246, 4478
Keywords
apology; declaration of law
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