Judgment No. 274
Decision
1. Quashes the two decisions of the Director-General given on 4 March 1975.
2. Directs that the letters and memoranda from the Director-General to the complainant dated 2 February 1973, 19 February 1973 and 22 June 1973 be removed from the complainant's record.
3. Directs that the letters and memoranda of 22 June and 25 July 1973 be removed from the complainant's record and remitted to the Director-General for reconsideration and so that he may, if he thinks fit, reprimand the complainant for having acted in such a manner as to lead to an interruption of the proceedings of the FAO Council in committee on 15 June 1973.
Consideration 22
Extract:
Under FAO Manual provision 330.151, unsatisfactory conduct consists of "conduct which is incompatible with the staff member's undertaken or implied obligation to the organization." "The unsatisfactory performance of staff duties is clearly within this general definition." A staff member's conduct of his private life or his trade union activities are not, apart from exceptional cases, the concern of the Director-General.
Reference(s)
Organization rules reference: PARAGRAPH 330.151 FAO MANUAL
Keywords
competence; staff member's duties; conduct; outside activity; staff union activity; executive head
Consideration 21
Extract:
According to the organization, the memorandum in question signified the initiation of disciplinary proceedings. But the memorandum was written "in the language of conclusions and not of allegations; it is impossible to argue that the writer of a letter which says that if the misconduct is repeated the offender may be dismissed, retains an open mind about whether or not misconduct had occurred. [...] The language of this memorandum disqualifies the Director-General from administering either a censure or a reprimand."
Keywords
decision; disciplinary measure; censure; disciplinary procedure; reprimand; discretion; consequence
Consideration 27
Extract:
The complainant was reprimanded on two occasions, the second being related to the first. "Since the Tribunal is setting aside the Director-General's conclusions about the earlier incident, it is clear that the second reprimand cannot in any event remain on the complainant's record in its existing form. The Tribunal considers therefore that the second reprimand should be set aside and that the matter should be remitted to the Director-General so that he can consider whether the [second] incident [...] is sufficiently grave to be by itself deserving of a reprimand."
Keywords
conduct; disciplinary measure; reprimand; freedom of association; staff representative
Consideration 22
Extract:
"Activities within the staff organization [...] constitute an area that is 'prima facie' outside the Director-General's jurisdiction. [...] There may be exceptional cases. [...] As a general rule a staff member gives no undertaking, express or implied, about how she will conduct herself in the business of the Staff Council or its organs."
Keywords
complainant; competence; conduct; staff union; freedom of association; staff union activity; executive head
Consideration 22
Extract:
When the offending conduct falls outside staff duties, "each case must be examined carefully to see whether an obligation has been broken". A staff member's conduct of his private life is not the concern of the Director-General, unless it brings the organization into disrepute. In the same way, trade union activities fall outside the competence of the Director-General, although there may be exceptions.
Keywords
competence; staff member's duties; conduct; outside activity; freedom of association; staff union activity; judicial review; executive head
Considerations 11-12
Extract:
On the eve of the elections, the Director-General sought assurances from the election and referendum committee concerning the participation of regional members, in particular as regards their nomination of candidates. "Any intervention by an employer with the processes by which his employees elect the representatives who will have to negotiate with him is a delicate matter even when he has a clear 'locus standi'." In the instant case, it is doubtful whether the Director-General had such a right.
Keywords
competence; staff union; staff representative; election; executive head
Consideration 22
Extract:
"[A]s a general rule a staff member gives no undertaking, express or implied, about how she will conduct herself in the business of the Staff Council or its organs. It would be contrary to the principle of freedom of association that she should. Freedom of association means that there must be freedom of discussion and of debate [...] There could be no true freedom of association if the disapproval of the Director-General [...] of what was said could lead to disciplinary measures."
Keywords
competence; staff union; freedom of association; executive head; definition; elements
Consideration 13
Extract:
The elections were postponed by the Election and Referendum Committee following an intervention by the Director-General. "Whatever may be the power under the Staff Regulations, the Statutes, which are the [...] Committee's only source of authority, required quite clearly that the election should be held in January. The Committee may have believed that the Director-General's prerogative enabled him to dispense them from observance of the Statutes, but they cannot [...] have supposed that their action would not meet with criticism and even indignation."
Keywords
competence; staff regulations and rules; amendment to the rules; enforcement; provision; staff representative; election; executive head; date
Consideration 26
Extract:
"When [the complainant] is present at a meeting of the [organization's] council or of its committees [she] must behave with the same propriety as any other staff member. If there was here an act of misconduct, the fact that it was committed by a staff representative for a serious purpose mitigates the offence but does not extinguish it."
Keywords
misconduct; staff member's duties; conduct; staff union; freedom of association; staff representative; consequence
Consideration 22
Extract:
"Freedom of association means that there must be freedom of discussion and of debate, and this freedom when feelings run strong [...] can spill over into extravagant and even regrettable language. The Staff Council has its own rules for dealing with misdemeanours of this sort. There could be no true freedom of association if the disapproval of the Director-General, whether justified or not, of what was said could lead to disciplinary measures.
Keywords
conduct; freedom of speech; disciplinary measure; freedom of association; consequence
Consideration 1
Extract:
"The Director-General has [...] under the general rules of the organization disciplinary control over all staff members and he must therefore have inherent power to warn as an alternative to a disciplinary measure and to have the warning put on record; whether or not that is called a reprimand does not matter."
Keywords
competence; staff regulations and rules; provision; disciplinary measure; warning; executive head
Considerations 6-7
Extract:
The complainant was reprimanded for her criticisms of two members of the Staff Council, of which she was herself a member. "The organization's case is simply that to cast doubt upon the integrity of another staff member is misconduct. In the opinion of the Tribunal this is too broad a proposition. [...] On a charge of misconduct motive and intent are relevant".
Keywords
grounds; conduct; reprimand; staff representative; judicial review
Consideration 2
Extract:
"But whereas in the case of censure which is of a disciplinary nature the Tribunal exercises full power of review as to the facts and the law because of the protection which staff members of the organization should enjoy, when the measure takes the form of a reprimand which is not of a disciplinary nature the Tribunal will exercise a limited power of review. That is to say, the Tribunal will not interfere unless [...]."
Keywords
disciplinary measure; censure; disciplinary procedure; reprimand; judicial review; difference; safeguard
Consideration 19
Extract:
"The position of a staff representative is not an easy one. There may be times when there is a conflict of interest between loyalty to the staff and loyalty to the administration. Each representative must resolve the conflict in his or her own way and not all will see it alike."
Keywords
staff member's duties; freedom of association; staff representative; consequence
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