Judgment No. 4856
Decision
The complaint is dismissed.
Summary
The complainant impugns the decision to dismiss him for misconduct.
Judgment keywords
Keywords
proportionality; misconduct; staff member's duties; outside activity; political activity; disciplinary measure; organisation's interest; conflict of interest; complaint dismissed
Consideration 2
Extract:
In challenging the impugned decision, the complainant refers to statements, submissions and/or arguments and explanations he submitted in the internal appeal procedure, attempting to incorporate by reference his pleadings in that procedure into the proceedings before the Tribunal. The Tribunal will not take them into consideration in this judgment. The case law makes it clear that it is not acceptable to incorporate by reference into the pleadings before the Tribunal arguments, contentions and pleas found in documents created for the purposes of internal review and appeal (see Judgment 4014, consideration 7, and the judgments cited therein). The Tribunal has also stated, in Judgment 2264, consideration 3(e), also referred to in Judgment 3434, consideration 5, for example, that this manner of proceeding is contrary to Article 6(1)(b) of its Rules and makes it impossible for it (the Tribunal) and the other party to understand the complainant’s pleas with sufficient ease and clarity.
Reference(s)
ILOAT Judgment(s): 2264, 3434, 4014
Keywords
procedure before the tribunal; submissions; writing style of submissions
Consideration 3
Extract:
As this complaint challenges a disciplinary decision, the Tribunal recalls its settled case law, that the burden of proof in such cases rests on an organization to prove the underlying allegations beyond a reasonable doubt before a disciplinary sanction can be imposed (see, for example, Judgment 3649, consideration 14).
Reference(s)
ILOAT Judgment(s): 3649
Keywords
burden of proof; disciplinary measure; standard of proof; beyond reasonable doubt
Consideration 3
Extract:
Consistent precedent also has it that where there is an investigation by an investigative body prior to disciplinary proceedings, the Tribunal’s role is not to reweigh the evidence collected by it, as reserve must be exercised before calling into question the findings of such a body and reviewing its assessment of the evidence. The Tribunal will interfere only in the case of manifest error (see Judgments 4106, consideration 6, and 3593, consideration 12).
Reference(s)
ILOAT Judgment(s): 3593, 4106
Keywords
evidence; judicial review; manifest error; investigation; investigative body; role of the tribunal
Consideration 4
Extract:
[T]he FAO/WFP’s regulatory framework prohibits a staff member from engaging in any political activities or being a candidate for a public office of a political character. WFP Human Resources (HR) Manual Section I.2.2.3 relevantly states that staff members wishing to submit their candidacy for a public office, provided that it is not political in nature, must obtain prior authorization from the Executive Director. This section however refers to Staff Regulation 301.1.7, which states that any staff member who becomes a candidate for public office of a political character, while still employed with the WFP, shall resign from the Organization. This makes it obvious that a staff member’s participation in such political activity is inimical to the interest of the WFP and is strictly forbidden. Notably, the Tribunal has stated, in Judgment 1061, consideration 5, that the reason for the provision in Staff Regulation 301.1.7 is that an international civil servant, though entitled to hold his own political views, must stand aloof from demonstrations of adherence to a political party and that integrity, loyalty to the international civil service, independence and impartiality are the standards required of an international civil servant and they require him or her to keep clear of involvement in national party politics.
Reference(s)
ILOAT Judgment(s): 1061
Keywords
international civil service principles; staff member's duties; outside activity; political activity; organisation's interest; conflict of interest; rules of the organisation
Consideration 14
Extract:
In its well-reasoned opinion, the Committee correctly concluded (and the Director-General confirmed in the impugned decision) that due process was observed during the OIGI’s investigation, noting that the complainant had been interviewed and given the opportunity to test the evidence. This is apparent from the information contained in consideration 1 of this judgment. The Committee also concluded, correctly in the Tribunal’s view, and as the Director-General accepted in the impugned decision, the fact that OIGI did not interview persons whom the complainant mentioned during his interview, notably, the two brothers or the CEO of the Political Party, did not violate due process because the complainant had not shown that not interviewing them caused him prejudice.
Keywords
evidence; adversarial proceedings; due process; witness; investigation; prejudice
Consideration 18
Extract:
Regarding the disciplinary measure imposed on the complainant, the general principle in the Tribunal’s case law is that the severity of the sanction that is imposed on a staff member of an international organization whose misconduct has been established is in the discretion of the decision-making authority, who must however exercise it in observance of the rule of law, particularly the principle of proportionality (see, for example, Judgments 3953, consideration 14, and 3640, consideration 29).
Reference(s)
ILOAT Judgment(s): 3640, 3953
Keywords
proportionality; misconduct; disciplinary measure; discretion
Consideration 19
Extract:
In his internal appeal, the complainant submitted that the measure of dismissal was harsh and disproportionate, primarily because in imposing it, WFP did not take into consideration his “long and distinguished service” with it. He also submitted that the measure had been imposed on an improper evidentiary basis, which he repeats before the Tribunal. The Appeals Committee concluded that the measure of dismissal was proportionate to the nature of the misconduct the complainant committed, with which conclusion the Director-General concurred in the impugned decision, noting that in imposing that measure, he had taken into account the complainant’s service but had decided that the imposition of a less severe measure was not warranted having regard to the totality of the circumstances, including the public nature of the complainant’s actions and his position. The Tribunal is satisfied that this determination was open to the Director-General in the circumstances of the case and discerns no manifest error in that determination. It therefore rejects the complainant’s claim that the disciplinary measure of dismissal was not proportionate.
Keywords
proportionality; misconduct; mitigating circumstances; disciplinary measure; discretion; aggravating circumstances
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