Judgment No. 4745
Decision
The complaint is dismissed.
Summary
The complainant challenges the decision to discharge him after due notice.
Judgment keywords
Keywords
disciplinary measure; complaint dismissed; disciplinary charges; discharge with notice
Consideration 3
Extract:
[T]he Tribunal holds that the [Office of the Inspector General]’s preliminary assessment is not strictly part of the disciplinary proceedings (see, in this connection, Judgment 3944, consideration 4), and Instruction IN/275 does not provide for its disclosure. Therefore, its non-disclosure does not vitiate the disciplinary process. In any case, a complainant is entitled to receive the preliminary assessment, if she or he requests it (see Judgment 4659, consideration 4). In the present case, the complainant did not request the disclosure of the OIG’s preliminary assessment either in his request for review or in his internal appeal. He raised this issue for the first time before the Tribunal and the Tribunal is satisfied that, since the Organization has disclosed it in its submissions before it, the complainant has had ample opportunity to comment on it.
Regarding [the Office of Legal Affairs’] recommendation on disciplinary measures, the Tribunal notes that Instruction IN/275 contains no provision requiring the disclosure of this recommendation to the subject of the disciplinary proceedings. Nevertheless, pursuant to paragraph 20 of Instruction IN/275, [the Office of Legal Affairs’] recommendation is a mandatory step in the disciplinary proceedings and, as such, it is plainly foundational to the disciplinary decision taken at the end of those proceedings.
[…]
[T]he Tribunal is satisfied that the disciplinary proceedings were conducted in compliance with the applicable internal rules […], and consistent with the due process and the adversarial principles (see, for example, Judgments 4011, consideration 9, 3872, consideration 6, and 2771, consideration 15).
Reference(s)
ILOAT Judgment(s): 2771, 3872, 3944, 4011, 4659
Keywords
inquiry; adversarial proceedings; disciplinary procedure; investigation
Consideration 5
Extract:
It is […] appropriate to recall the Tribunal’s well-settled case law on disciplinary decisions. Such decisions fall within the discretionary authority of an international organization and are subject to limited review. The Tribunal must determine whether or not 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 whether conclusions which are clearly false had been drawn from the documents in the file, or finally, whether there was a misuse of authority. Additionally, the Tribunal shall not interfere with the findings of an investigative body in disciplinary proceedings unless there was a manifest error (see, for example, Judgment 4579, consideration 4, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 4579
Keywords
disciplinary procedure; discretion; role of the tribunal
Consideration 6
Extract:
The Tribunal does not accept the complainant’s assertion of an existing established practice allowing staff members to enter their annual leave request after its commencement or even at the end of it, upon their return from travel. There is no evidence of such a practice and, in any case, a practice of this kind, which does not comply with the clear and unambiguous Staff Rule requiring prior approval of any annual leave, would not be legally binding. According to the Tribunal’s case law, a practice cannot become legally binding where, as in the present case, it contravenes specific rules which are already in force (see, for example, Judgment 4555, consideration 11, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 4555
Keywords
practice
Consideration 6
Extract:
In any event, the mere fact that the annual leave, had it been properly requested, would have been probably, or even certainly, granted, even if it were proven – and it is not – did not exempt the complainant from his duty to seek prior approval. It does not fall to a staff member to assess whether their annual leave can be granted or not, considering that, pursuant to the relevant rules, all arrangements pertaining to annual leave shall be subject to the exigencies of service. Thus, annual leave can be granted only following an assessment and approval by a competent officer when compatible with the exigencies of service.
Keywords
annual leave
Consideration 10
Extract:
The Tribunal […] adds that, according to its well-settled case law regarding the standard of proof in cases of misconduct, the burden of proof rests on an organization, which has to prove allegations of misconduct beyond reasonable doubt before a disciplinary sanction can be imposed (see, for example, Judgments 4697, consideration 22, 4491, consideration 19, 4461, consideration 6, 4364, consideration 10, and the case law cited therein). In the present case, the Tribunal is satisfied that it was open to the Organization to find, on the evidence, that the complainant’s misconduct was proved beyond reasonable doubt.
Reference(s)
ILOAT Judgment(s): 4364, 4461, 4491, 4697
Keywords
burden of proof; presumption of innocence; benefit of doubt; disciplinary measure; disciplinary procedure; judicial review
Consideration 11
Extract:
The Tribunal’s well-settled case law has it that the choice of the appropriate disciplinary measure falls within the discretion of an organization, provided that the discretion be exercised in observance of the rule of law, particularly the principle of proportionality (see, for example, Judgments 4660, consideration 16, 4504, consideration 11, 4247, consideration 7, 3640, consideration 29, and 1984, consideration 7). In reviewing the proportionality of a sanction, the Tribunal cannot substitute its evaluation for that of the disciplinary authority, and it limits itself to assessing whether the decision falls within the range of acceptability. Lack of proportionality is to be treated as an error of law warranting the setting aside of a disciplinary measure even though a decision in that regard is discretionary in nature. In determining whether disciplinary action is disproportionate to the offence, both objective and subjective features are to be taken into account (see Judgment 4504, consideration 11, and the case law cited therein). […]
The evaluation of the weight, if any, of the extenuating circumstances falls within the discretion of the Organization. […]
Apologizing after the events is not a mitigating factor in the absence of concrete actions by the complainant to remedy the difficult situation he created.
Reference(s)
ILOAT Judgment(s): 1984, 3640, 4247, 4504, 4660
Keywords
proportionality; mitigating circumstances; disciplinary measure
Consideration 12
Extract:
According to the Tribunal’s well-settled case law, complainants bear the burden of proof with regard to allegations of bias (see, for example, Judgment 4010, consideration 9). Although evidence of personal prejudice is often concealed and such prejudice must be inferred from surrounding circumstances, that does not relieve complainants, who bear the burden of proving their allegations, from introducing evidence of sufficient quality and weight to persuade the Tribunal. Mere suspicion and unsupported allegations are clearly not enough, the less so where, as here, the actions of the Organization, which are alleged to have been tainted by personal prejudice, are shown to have a verifiable objective justification (see Judgment 4608, consideration 7, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 4010, 4608
Keywords
burden of proof; bias; personal prejudice
|
