Disciplinary procedure (509, 901, 909, 910, 911, 912, 917,-666)
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Keywords: Disciplinary procedure
Total judgments found: 131
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Judgment 4864
138th Session, 2024
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to withhold two months’ salary to comply with a national Court order.
Consideration 14
Extract:
The Tribunal’s case law has it that while international organizations cannot intrude on the private lives of their staff members, those staff members must nonetheless comply with the requirements inherent in their status as international civil servants, including in their personal conduct (see Judgment 4400, consideration 24). Thus, the complainant cannot invoke his right to respect for his private life as a shield to circumvent his duty towards the Organization to maintain a high standard of behaviour also in his private life. A high standard of behaviour implies discharging private obligations and not involving the Organization in private disputes, involvement which is unwanted by the Organization but inevitable where private debts are not settled.
Reference(s)
ILOAT Judgment(s): 4400
Keywords:
conduct; disciplinary procedure; private life;
Judgment 4859
138th Session, 2024
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to summarily dismiss him for serious misconduct.
Consideration 14
Extract:
The Tribunal notes that the failure to respect confidentiality, even if it were proven, is not a decisive flaw in the proceedings which would justify the setting aside of the disciplinary decision. The breach of confidentiality, if proven, might only arguably entitle the complainant to moral damages.
[…]
In conclusion, there is neither evidence that UNAIDS failed to follow the proper procedures to ensure the confidentiality of the investigation nor of how the rumours were started, thus, no legal consequences arise (see Judgment 3236, consideration 14). Since there is no persuasive evidence that the Organization was responsible for the unauthorized disclosure of information, the leak cannot be considered as part of a pattern of retaliation, and the complainant is not entitled to moral damages for breach of confidentiality.
Reference(s)
ILOAT Judgment(s): 3236
Keywords:
breach of confidentiality; disciplinary procedure; flaw; moral damages;
Judgment 4858
138th Session, 2024
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to summarily dismiss her for serious misconduct.
Consideration 14
Extract:
The Tribunal notes that the failure to respect confidentiality, even if it were proven, does not amount to a conclusive flaw in the proceedings which would justify the setting aside of the disciplinary decision. The breach of confidentiality, if proven, might only arguably entitle the complainant to moral damages.
[…]
In conclusion, there is neither evidence that UNAIDS failed to follow the proper procedures to ensure the confidentiality of the investigation nor of how the rumours were started, thus, no legal consequences arise (see Judgment 3236, consideration 14). Since there is no persuasive evidence that the Organization was responsible for the unauthorized disclosure of information, the leak cannot be considered as part of a pattern of retaliation, and the complainant is not entitled to moral damages for breach of confidentiality.
Reference(s)
ILOAT Judgment(s): 3236
Keywords:
breach of confidentiality; disciplinary procedure; flaw; moral damages;
Judgment 4846
138th Session, 2024
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges a finding made in the decision not to initiate disciplinary proceedings against her.
Considerations 11-12
Extract:
There is no material difference between the circumstances arising in this case and those that were considered by the Tribunal in Judgment 4295. In that case the complaint was dismissed because the complainant had no cause of action. A decision had been made by the Director General that no disciplinary measure would be imposed on the complainant. As the Tribunal observed, the decision was beneficial to the complainant, and thus he had no cause of action. To the extent that a finding of fact (contested by the complainant) had been made which led to the decision, that finding, as the Tribunal explained, “forms part of the reasons articulated in arriving at the decision”. In the present case, the decision not to commence disciplinary proceedings was likewise favourable to the complainant. To the extent findings of fact were made and adhered to in the impugned decision and reflected in the modified text of the letter of 22 February 2018, they were findings informing what was ultimately the favourable decision. Given the modification of the letter, there was no conclusory finding that the complainant had engaged in misconduct, the matter that troubled the WAB […] The complainant has no cause of action and her complaint should be dismissed.
Keywords:
administrative decision; cause of action; disciplinary measure; disciplinary procedure; impugned decision; misconduct; receivability of the complaint;
Judgment 4839
138th Session, 2024
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to reject her sexual harassment claim.
Consideration 6
Extract:
The IOM’s legal framework does not specify the applicable standard of proof for a finding of harassment. Regarding this point, the Tribunal’s case law states that, while the standard of proof required to impose disciplinary measures on an individual charged with misconduct is that of “beyond a reasonable doubt”, the applicable standard of proof for a finding of harassment is a less onerous standard (see, for example, Judgments 4663, consideration 12, 4289, consideration 10, and 4207, consideration 20).
Reference(s)
ILOAT Judgment(s): 4207, 4289, 4663
Keywords:
disciplinary measure; disciplinary procedure; harassment; misconduct; standard of proof;
Judgment 4837
138th Session, 2024
International Federation of Red Cross and Red Crescent Societies
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who separated from service, contests the placement in his personnel file of a letter stating that he was found to have committed sexual harassment during his employment and that, had he not separated from service, he would have been imposed the disciplinary measure of a final letter of warning.
Consideration 8
Extract:
[H]aving reviewed the applicable rules, the practice of the United Nations and the Tribunal’s case law, particularly stated in consideration 6 of Judgment 4313, the Federation had a legitimate interest [to launch a second investigation and disciplinary process] to correct the initial flawed process (the non-disclosure of the documents to the complainant) and to conclude the process on a proper legal basis and document the outcome on the complainant’s personnel file for its future employment decisions.
Reference(s)
ILOAT Judgment(s): 4313
Keywords:
disciplinary procedure; investigation; personal file;
Judgment 4832
138th Session, 2024
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to impose on her the disciplinary sanction of demotion by two grades.
Considerations 3-4
Extract:
To start with, it is convenient to recall the Tribunal’s well-settled case law on disciplinary decisions. In Judgment 4745, consideration 5, the Tribunal aptly wrote the following in this regard:
“[Disciplinary] 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).”
(See also Judgment 4764, consideration 8.)
Among the many pleas entered by the complainant in support of her complaint, there are four which, since they relate to procedural errors or errors of law, fall within the limited scope of the Tribunal’s power of review defined above and are decisive for the outcome of this dispute. These pleas pertain to the breach of the complainant’s due process rights, to the lack of sufficient motivation of the impugned decision, to an error of law in the assessment of the alleged serious misconduct and gross negligence findings, and to a lack of proportionality of the sanction imposed.”
Reference(s)
ILOAT Judgment(s): 4579, 4745, 4764
Keywords:
disciplinary procedure; discretion; role of the tribunal;
Considerations 27-29 and 36
Extract:
Firm and constant precedent of the Tribunal has it that, before adopting a disciplinary measure, an international organization must give the staff member concerned the opportunity to defend herself or himself in adversarial proceedings (see, for example, Judgment 3875, consideration 3).
This principle is particularly important during the investigative stage of disciplinary proceedings as the Tribunal recalled it in the following terms in Judgment 4011, consideration 9:
“The basic applicable principles regarding the right to due process at the investigative stage of disciplinary proceedings were stated by the Tribunal as follows in Judgment 2771, consideration 15:
‘The general requirement with respect to due process in relation to an investigation – that being the function performed by the Investigation Panel in this case – is as set out in Judgment 2475, namely, that the ‘investigation be conducted in a manner designed to ascertain all relevant facts without compromising the good name of the employee and that the employee be given an opportunity to test the evidence put against him or her and to answer the charge made’. At least that is so where no procedure is prescribed. Where, as here, there is a prescribed procedure, that procedure must be observed. Additionally, it is necessary that there be a fair investigation, in the sense described in Judgment 2475 and that there be an opportunity to answer the evidence and the charges.’”
Of course, due process must also be observed at all other stages of disciplinary proceedings. Accordingly, the following was stated in Judgment 2786, consideration 13:
“Due process requires that a staff member accused of misconduct be given an opportunity to test the evidence relied upon and, if he or she so wishes, to produce evidence to the contrary. The right to make a defence is necessarily a right to defend oneself before an adverse decision is made, whether by a disciplinary body or the deciding authority (see Judgment 2496, under 7).”
(See also Judgment 4343, consideration 13.)
The addition of another layer of investigation in the disciplinary process, not contemplated by the internal rules of the organization, which may have, as it did, set aside the findings of the advisory body provided for in these rules, coupled with the absence of sharing with the complainant of the new evidence gathered during this process before a final decision on the disciplinary measure imposed was reached, amounted to gross procedural irregularities that violated the complainant’s right of defence and entitlement to due process.
[…]
Established precedent in the Tribunal’s case law has it that a staff member’s right to due process entails that the organization has an obligation to prove the misconduct complained of beyond reasonable doubt. This serves a purpose peculiar to the law of the international civil service and involves the recognition that often disciplinary proceedings can have severe consequences for the staff member concerned. In this regard, a staff member is to be given the benefit of the doubt (see, for example, Judgments 4697, consideration 12, and 4491, consideration 19). In this respect, in Judgment 4047, consideration 6, the Tribunal recalled that it is equally well settled that it will not engage in a determination as to whether the burden of proof has been met, instead, it will review the evidence to determine whether a finding of guilt beyond a reasonable doubt could properly have been made by the primary trier of fact (see also Judgments 4764, consideration 13, 4697, consideration 22, and 4364, consideration 10).
Reference(s)
ILOAT Judgment(s): 2475, 2496, 2771, 2786, 3875, 4011, 4047, 4343, 4364, 4491, 4697, 4764
Keywords:
adversarial proceedings; disciplinary procedure; due process in disciplinary procedure; right to be heard;
Judgment keywords
Keywords:
complaint allowed; demotion; disciplinary measure; disciplinary procedure;
Judgment 4815
138th Session, 2024
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests his summary dismissal.
Consideration 11
Extract:
The complainant […] submits that there was procedural irregularity because the [the Office of Internal Oversight Services]’s decision to interview him just one day after he was notified of its investigation into the allegation of fraud with no choice of a later date despite the seriousness of the allegations, was biased. According to paragraph 50 of the Investigation Guidelines, IOS conducts interviews to give a person who is interviewed an opportunity to be heard and to elicit information about the matter under investigation. Paragraph 53 of the Investigation Guidelines, which essentially sets out the interview procedure, does not provide any timeframe within which an interviewee shall be notified that she or he is invited to an interview, but it indicates that she or he should be notified in advance. The one day’s notice the complainant was given is understandable in a case of this nature. Moreover, as UNIDO points out, the complainant did not object to being notified at short notice, and, pursuant to paragraph 53 of the Investigation Guidelines, the EIO authorized an observer to be present at the interview at his request. The complainant […] when asked whether he had any objections or comments concerning how the interview was conducted, he replied, “No, absolutely not”. The Tribunal finds that […] the decision to interview the complainant one day after he was notified of the allegation of fraud against him […] reflect[s] bias, as the complainant alleges.
Keywords:
disciplinary procedure; discretion; investigation; procedural rights during investigation;
Consideration 14
Extract:
The complainant submits that there were procedural irregularities in the investigative process owing to the anonymity of the persons who made the allegations; no witness statements, transcripts or summaries of the interviews were provided, and there was no clear information regarding the allegations resulting in a breach of his due process rights. The case law has it that a staff member is entitled to due process before a disciplinary sanction is imposed. In this regard, he or she must be given, at the very least, an opportunity to test the evidence on which the charges are based, to give his own account of the facts, to put an argument that the conduct in question does not amount to misconduct and that, even if it does, it should not attract the proposed sanction (see Judgment 3137, consideration 6, and the case law referred to therein). Importantly, however, in light of the complainant’s foregoing pleas concerning the violation of due process, it is notable the Tribunal determined, in consideration 22 of Judgment 4615, that the right of defence of a complainant was not affected by the fact that the officials heard as witnesses were not named; it was sufficient for the complainant to know the content of the statements and it was not necessary for her to know the witnesses’ names; that furthermore, the Advisory Board redacted some names for reasons of confidentiality, since some officials feared retaliation by the complainant, which was a reasonable step to strike a balance between the right of defence of the accused person and the right of the witnesses to be protected against retaliation.”
Reference(s)
ILOAT Judgment(s): 3137, 4615
Keywords:
disciplinary procedure; due process; procedural rights during investigation;
Judgment 4779
137th Session, 2024
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her dismissal for misconduct.
Considerations 5 & 13
Extract:
[A]lthough it is indeed a matter of principle under the Tribunal’s case law that an organisation must respect the confidentiality of private messages stored in a professional email account (see, in particular, Judgment 2183, consideration 19), that requirement must clearly be balanced against the requirements intrinsic to the need to combat fraud and, more generally, to the need to tackle misconduct on the part of officials. [...]
[I]t should be recalled that, while international organisations cannot intrude on the private lives of their staff members, those staff members must nonetheless comply with the requirements inherent in their status as international civil servants, including in their personal conduct. This principle is, for example, laid down in the Standards of Conduct for the International Civil Service [...].Furthermore, the Tribunal has repeatedly stated in its case law that some private conduct may, on this account, legitimately lead to disciplinary action (see, for example, Judgments 4400, consideration 24, and 3602, consideration 13, and, with specific regard to a failure to honour private financial obligations, Judgments 2944, considerations 44 to 49, 1584, consideration 9, and 1480, consideration 3).
Reference(s)
ILOAT Judgment(s): 1480, 1584, 2183, 2944, 3602, 4400
Keywords:
conduct; disciplinary procedure; organisation's duties; private life;
Considerations 4 & 10
Extract:
[T]he complainant argues, first, that the time limit within which [...] an investigation must normally be carried out was exceeded.
[...]
However, neither the time limit within which the investigation should normally be completed, nor the requirement to state the reasons why that time limit has been exceeded, is intended to have the effect of invalidating the investigation report in the event of a breach. However regrettable they may be, the anomalies in question are therefore not such as to render unlawful the sanction imposed at the conclusion of the disciplinary proceedings on the basis of the findings contained in that report.
[...]
[T]he fact that the prescribed time limit within which the disciplinary chamber must in principle deliver its advice was exceeded does not have the effect of invalidating that advice, and therefore – as with the failure to comply with the time limit applicable to investigations, discussed above – it has no bearing on the lawfulness of the sanction imposed at the conclusion of the disciplinary proceedings.
Keywords:
disciplinary procedure; inquiry; time limit;
Judgment keywords
Keywords:
complaint dismissed; disciplinary procedure; fraud; remand;
Judgment 4770
137th Session, 2024
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss him for misconduct.
Consideration 18
Extract:
[I]n the present case, since the complainant’s actions could constitute misconduct, the proper procedure to be followed was the disciplinary one, which best safeguarded his right of defence, even though his conduct could also be regarded as showing unsatisfactory performance.
Keywords:
disciplinary procedure; misconduct; unsatisfactory service;
Consideration 6
Extract:
According to the Tribunal’s case law, the cross-examination of witnesses is not a requirement for the lawfulness of the investigation and the disciplinary proceedings, provided that due process be ensured by other means. In the present case, the Tribunal is satisfied that due process was respected, despite the fact that the complainant had no opportunity to cross-examine the witnesses. Indeed, he was informed of the precise allegations made against him and was provided with the verbatim records of the statements of the witnesses. He was thus able to confront and test the evidence, even though he was not present when the statements were made and was not able to cross-examine the witnesses who made them. Moreover, the investigation relied not only on the statements rendered by three witnesses, but also on documentary evidence.
Keywords:
disciplinary procedure; due process; investigation; witness;
Judgment 4764
137th Session, 2024
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to dismiss her for misconduct.
Consideration 7
Extract:
[T]he Tribunal said, in relation to both the opinion of an internal appeals body and an investigative body established by the rules of the organization concerned, in Judgment 4237, consideration 12:
“According to the Tribunal’s case law (see, for example, Judgments 3757, under 6, 4024, under 6, 4026, under 5, and 4091, under 17), ‘where an internal appeal body has heard evidence and made findings of fact, the Tribunal will only interfere if there is manifest error (see Judgment 3439, consideration 7)’. Moreover, where there is an investigation by an investigative body in disciplinary proceedings, ‘it is not the Tribunal’s role to reweigh the evidence collected by an investigative body the members of which, having directly met and heard the persons concerned or implicated, were able immediately to assess the reliability of their testimony. For that reason, 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 3682, under 8, and 3593, under 12)’ (see Judgment 3757, under 6).”
It is true that the [Global Board of Appeal] did not hear the witnesses in the present case. It did, however, review a large amount of documentary material, including the records of interviews, and made findings of fact based on this material. The opinion of the [Global Board of Appeal] is, on some relevant matters, balanced and considered and has to be given the deference spoken of in the Tribunal’s case law."
Reference(s)
ILOAT Judgment(s): 3593, 3682, 3757, 4237
Keywords:
disciplinary procedure; evidence; internal appeal; investigation;
Judgment 4749
137th Session, 2024
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the termination of his appointment with compensation in lieu of notice.
Judgment keywords
Keywords:
complaint dismissed; disciplinary measure; disciplinary procedure; termination of employment;
Consideration 5
Extract:
In disciplinary matters, the Tribunal has consistently found that the burden of proof rests on an organisation to prove the allegations of misconduct beyond reasonable doubt before a disciplinary sanction can be imposed. In respect of the standard of proof, the Tribunal relevantly stated the following in Judgment 4362, considerations 7, 8 and 10:
“7. [...] The relevant legal standard is beyond reasonable doubt. The role of the Tribunal in a case such as the present is not to assess the evidence itself and determine whether the charge of misconduct has been established beyond reasonable doubt but rather to assess whether there was evidence available to the relevant decision-maker to reach that conclusion (see, for example, Judgment 3863, consideration 11). Part of the Tribunal’s role is to assess whether the decision-maker properly applied the standard when evaluating the evidence (see Judgment 3863, consideration 8).
8. The standard of proof of beyond reasonable doubt does not exist to create an insuperable barrier for organisations to successfully prosecute disciplinary proceedings against staff members. Indeed, it should not have that effect. What is required is discussed in many judgments of the Tribunal. Rather the standard involves the recognition that often disciplinary proceedings can have severe consequences for the affected staff member, including dismissal and potentially serious adverse consequences on the reputation of the staff member and her or his career as an international civil servant, and in these circumstances it is appropriate to require a high level of satisfaction on the part of the organisation that the disciplinary measure is justified because the misconduct has been proved. The likelihood of misconduct having occurred is insufficient and does not afford appropriate protection to international civil servants. It is fundamentally unproductive to say, critically, this standard is the ‘criminal’ standard in some domestic legal systems and a more appropriate standard is the ‘civil’ standard in the same systems involving the assessment of evidence and proof on the balance of probabilities. The standard of beyond reasonable doubt derived from the Tribunal’s case law as it has evolved over the decades, serves a purpose peculiar to the law of the international civil service.
[...]
10. [...] The standard of beyond reasonable doubt concerns both the finding of specific facts and the overall level of satisfaction that the case against the staff member has been made out. In relation to the proof of any essential relevant fact, the person or body charged with the task of assessing the evidence and making a decision in the context of determining disciplinary proceedings must be satisfied beyond reasonable doubt that a particular fact exists.”
Reference(s)
ILOAT Judgment(s): 3863, 4362
Keywords:
beyond reasonable doubt; disciplinary measure; disciplinary procedure; standard of proof;
Considerations 10-11
Extract:
In Judgment 4478, considerations 11 and 12, the Tribunal recalled that “[t]he case law confirms that the decision on the type of disciplinary action taken remains in the discretion of the disciplinary authority, as long as the measure is not disproportionate” (see also Judgment 3640, consideration 29), and that “the Tribunal cannot substitute its evaluation for that of the disciplinary authority, [as] the Tribunal limits itself to assessing whether the decision falls within the range of acceptability” (see also on this point Judgment 3971, consideration 17). In Judgment 4478, the Tribunal further observed that, although a lack of proportionality must be seen as an error of law warranting the setting aside of a disciplinary measure, “[i]n determining whether disciplinary action is disproportionate to the offence, both objective and subjective features are to be taken into account and, in the case of dismissal, the closest scrutiny is necessary”. However, in Judgment 2699, consideration 15, the Tribunal emphasized that it will accord a high degree of deference to decisions concerning sanctions where the misconduct relates to issues of dishonesty, misrepresentation and a lack of integrity (see also on this point Judgment 4308, consideration 18).
In the present case, the Tribunal notes that the sanction imposed on the complainant, although severe, was not the most serious disciplinary measure provided for in the ICC Staff Rules, which is summary dismissal for serious misconduct. Moreover, the aforementioned provisions specifically placed the complainant under duties of probity and honesty, and it is plain from the submissions and the evidence that his role in the Victims and Witnesses Section of the Registry of the Court in Côte d’Ivoire entailed the obligation to demonstrate irreproachable integrity and to conduct himself with the highest probity when, inter alia, providing proof of expenditure chargeable to the organisation. However, the complainant’s submission of falsified invoices that he himself had acquired for the purpose of providing proof of official expenditure directly undermined the trust essential to his continued relationship with the Organisation. The Tribunal therefore finds that, despite its severity, the sanction imposed was not disproportionate [...].
Reference(s)
ILOAT Judgment(s): 2699, 3971, 4308, 4478
Keywords:
disciplinary measure; disciplinary procedure; fraud; proportionality;
Consideration 6
Extract:
[A]n opinion of a disciplinary committee that rests on a balanced and thoughtful analysis and contains justified and rational conclusions and recommendations warrants considerable deference (see Judgment 3969, consideration 11).
Reference(s)
ILOAT Judgment(s): 3969
Keywords:
advisory body; disciplinary procedure; judicial review;
Judgment 4745
137th Session, 2024
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to discharge him after due 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:
adversarial proceedings; disciplinary procedure; inquiry; investigation;
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:
benefit of doubt; burden of proof; disciplinary measure; disciplinary procedure; judicial review; presumption of innocence;
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;
Judgment 4697
136th Session, 2023
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the Director General’s decision to impose on him the disciplinary sanction of downgrading.
Judgment keywords
Keywords:
complaint allowed; disciplinary procedure;
Consideration 12
Extract:
The Tribunal’s case law [...] establishes that, in disciplinary matters, the official’s right to due process means that an organisation has an obligation to prove the misconduct complained of beyond reasonable doubt. This serves a purpose peculiar to the law of the international civil service and involves the recognition that often disciplinary proceedings can have severe consequences for the official concerned (see, for example, Judgments 4478, consideration 10, 4362, considerations 7, 8 and 10, and 4360, consideration 10).
Reference(s)
ILOAT Judgment(s): 4360, 4362, 4478
Keywords:
beyond reasonable doubt; disciplinary procedure; standard of proof;
Considerations 14-15
Extract:
The Tribunal considers that it is clear from these provisions, which are peculiar to Eurocontrol’s Staff Regulations, that officials of the Organisation are entitled to a due process which affords them the opportunity to be fully heard in connection with the misconduct of which they are accused and to a genuine opportunity to express themselves on the “penalty envisaged” in terms both of its content and of its proportionality to the facts complained of.
In the present case, bearing in mind that the Director General had the ability to apply a large range of disciplinary measures which had to be commensurate with the facts complained of and which had potentially significant consequences for the complainant depending on the severity of the penalty decided upon, the Tribunal considers that the provisions required the complainant to be given the opportunity to make observations on the penalty envisaged by the Director General before that penalty was imposed.
[...]
The Tribunal considers that the Organisation therefore breached its own disciplinary rules and substantially undermined the complainant’s right to be heard under the Staff Regulations in order to put forward his comments on the penalty envisaged against him. This breach of the rules was all the more serious that the penalty in question was significant and had severe consequences for the complainant, as downgrading by two grades brought with it an immediate and permanent reduction by almost 20 per cent of the amount of his pension.
Keywords:
disciplinary procedure; patere legem; right to be heard;
Consideration 22
Extract:
In Judgment 4491, consideration 19, the Tribunal recalled that “[a] staff member accused of wrongdoing is presumed to be innocent and is to be given the benefit of the doubt”. Similarly, in Judgment 3969, consideration 16, the Tribunal reiterated that, when the executive head of an organisation seeks to motivate his conclusions and decision for departing from the conclusions of a Disciplinary Committee, she or he must establish beyond a reasonable doubt the conduct or behaviour of which a complainant is accused. Lastly, in Judgment 4047, consideration 6, the Tribunal recalled that it is equally well settled that the “Tribunal will not engage in a determination as to whether the burden of proof has been met, instead, the Tribunal will review the evidence to determine whether a finding of guilt beyond a reasonable doubt could properly have been made by the primary trier of fact”.
In the present case, the Tribunal considers it entirely apparent, as was also noted in the unanimous opinions of the Disciplinary Board and the Joint Committee for Disputes, that the Administration could not have found the complainant to be guilty beyond reasonable doubt of the alleged breaches of the provisions of the Staff Regulations relied on.
Reference(s)
ILOAT Judgment(s): 4047, 4491
Keywords:
benefit of doubt; burden of proof; disciplinary measure; disciplinary procedure; judicial review; presumption of innocence;
Consideration 11
Extract:
Established precedent of the Tribunal has it that before adopting a disciplinary measure, an international organisation must give the staff member concerned the opportunity to defend herself or himself in adversarial proceedings (see, for example, Judgment 3875, consideration 3). This is to ensure that the staff member is afforded the opportunity to fully express her or his point of view, with the aim of being properly heard. In Judgment 4408, consideration 4, the Tribunal reiterated the importance of these principles as follows:
“4. The Tribunal points out that respect for the adversarial principle and the right to be heard in the internal appeal procedure requires that the official concerned be afforded the opportunity to comment on all relevant issues relating to the contested decision and, in particular, on all the organisation’s arguments (see Judgment 2598, consideration 6).”
Reference(s)
ILOAT Judgment(s): 2598, 3875, 4408
Keywords:
disciplinary procedure; due process in disciplinary procedure;
Judgment 4660
136th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the Secretary General’s decision to dismiss him summarily without indemnities on disciplinary grounds.
Judgment keywords
Keywords:
complaint allowed; disciplinary procedure; summary dismissal;
Consideration 24
Extract:
It is settled case law that officials are entitled to have their appeals examined with the necessary speed, in particular having regard to the nature of the decision which they wish to challenge (see, for example, [...] Judgments 4457, consideration 29, 4310, consideration 15, and 4063, consideration 14).
In the present case, two years elapsed between the complainant lodging his internal appeal on 20 August 2018 and his receipt of notification of the Secretary General’s decision of 12 August 2020, which eventually ruled on that appeal after the complaint had been filed.
[T]he Tribunal finds this delay unreasonable having regard to the nature of the case, since it concerned a summary dismissal without indemnities on disciplinary grounds.
Reference(s)
ILOAT Judgment(s): 4063, 4310, 4457
Keywords:
disciplinary procedure; moral injury; travel time;
Consideration 3
Extract:
As the complainant lodged his internal appeal on 20 August 2018, a period of 18 months had passed when he filed his complaint with the Tribunal on 27 February 2020. Such a delay must be regarded as unreasonable in the circumstances, since the appeal in question concerned the disciplinary sanction of summary dismissal without indemnities, that is a decision with serious repercussions for the complainant, and the case therefore merited priority treatment by its very nature. This is particularly true given that in this case the Secretary General departed from the recommendation of the Joint Disciplinary Committee in choosing a more severe sanction and, if only for this reason, the complainant’s appeal could not be considered prima facie as devoid of any substance. Furthermore, although the Organization submits that the delay in examining the complainant’s appeal can be explained in part by the difficulties faced by the Joint Appeals Committee in operating owing to lockdown measures during the Covid-19 pandemic, the Tribunal notes that this justification cannot apply to the period prior to 27 February 2020, since the measures referred to were not implemented by the Organization until March 2020.
Keywords:
delay in internal procedure; disciplinary procedure; time limit;
Judgment 4659
136th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss him for serious misconduct.
Consideration 5
Extract:
The Tribunal notes that the decision to dismiss the complainant for serious misconduct, taken by the Secretary General on 24 December 2018 and confirmed by the impugned decision, states that the disciplinary measure imposed was based on several acts of misconduct, one of which was expressly presented as particularly serious, that is the complainant’s withholding of lists of foreign terrorists.
However, the Tribunal observes that, as the complainant submits, the latter act of misconduct was not included in the confidential memorandum of 26 March 2018 notifying the complainant of the charges against him, even though it had a clear impact in the assessment of the seriousness of the disciplinary penalty to be ordered. In fact, it is apparent from the evidence that the complainant was only officially informed of this new charge on the actual day of his hearing before the Joint Disciplinary Committee, at which he was directly invited to present his comments on the matter.
More generally, the Tribunal finds that, as the complainant contends, due process was clearly breached by the fact that he was unable to prepare his defence before the Joint Disciplinary Committee effectively, if necessary with the assistance of his counsel, and that, contrary to what had been promised to him on various occasions during the proceedings by the Chairman of the Committee, he was unable to participate actively in the processing of the evidence by criticising the evidence gathered by the Organization and putting forward his own (see, in that regard, Judgments 4011, consideration 9, 3295, consideration 11, and 1661, consideration 3).
Reference(s)
ILOAT Judgment(s): 1661, 3295, 4011
Keywords:
adversarial proceedings; disciplinary measure; disciplinary procedure;
Consideration 4
Extract:
The Tribunal notes that it is undisputed that the preliminary inquiry report was never sent to the complainant in its entirety, even in a version redacted to the extent necessary to maintain the confidentiality of some aspects of the investigation, linked in particular to protecting the interests of third parties. It is true that, as the Organization argues, the actual disciplinary proceedings were only initiated by the notification of the Secretary General’s confidential memorandum of 26 March 2018. However, the fact remains that the preliminary inquiry report also constitutes obviously an important element of the proceedings in the present case, since the charges initially brought against the complainant were based on that report and it had been forwarded to both the Joint Disciplinary Committee and the Joint Appeals Committee, which took it into consideration in their respective opinions.
It follows that Staff Rule 10.3.2(5), under which the official concerned “[shall] have access to all documents and forms of evidence submitted to the Joint Committees” was not complied with and there was a breach of due process as established in the Tribunal’s case law (see Judgments 4412, consideration 14, 4310, consideration 11, and 3295, consideration 13).
Reference(s)
ILOAT Judgment(s): 3295, 4310, 4412
Keywords:
adversarial proceedings; confidentiality; disciplinary measure; disciplinary procedure; disclosure of evidence; investigation report;
Consideration 6
Extract:
[T]he complainant argues that, in breach of Staff Rule 10.3.5(2), the opinion of the Joint Disciplinary Committee was not signed by its members.
The Tribunal observes that the consultative opinion of the Joint Disciplinary Committee officially filed by the Organization has not been signed, nor does it indicate the date on which it was delivered. When questioned on this point, Interpol acknowledged that the consultative opinion had not been signed but confirmed that the opinion “was sent by email [...] by one of the members of the Committee with a copy to the Chairman and the other members of the Committee”, and it produced a copy of the email to which the opinion had been attached.
The Tribunal points out that Staff Rule 10.3.5(2) provides expressly that “[t]he Chairman of the relevant Joint Committee shall sign the consultative opinion”. It is plain that this formality was not observed, and Interpol’s explanations clearly do not change that fact. Moreover, the Tribunal considers that the failure to comply with this requirement, the purpose of which is to guarantee the authenticity of the Committee’s opinion, constitutes a substantial flaw. That finding particularly applies to disciplinary proceedings.
Keywords:
disciplinary body; disciplinary procedure; signature;
Judgment 4615
135th Session, 2023
Energy Charter Conference
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate her appointment.
Consideration 20
Extract:
[T]he organisation started the process as a harassment complaint procedure and finalized it with the outcome of a different procedure, that is “termination of appointment” under Regulation 13a)i). Consequently, the organisation failed to follow a proper disciplinary procedure.
Keywords:
disciplinary procedure; harassment; termination of employment;
Consideration 7
Extract:
[I]n disciplinary proceedings the official concerned has a right to be informed of the charges made against her or him, as well as of the potential penalty, and has also the right to be heard or to comment thereon.
Keywords:
disciplinary charges; disciplinary procedure; due process in disciplinary procedure;
Considerations 20 and 23
Extract:
The case law relied upon by the organisation (see Judgment 2771, consideration 18, cited below), correctly interpreted, does not allow exceptions to the necessity of a written record being made available to the concerned official, but only approves of a written record as an alternative to cross-examination or to a verbatim record. Indeed, the Tribunal held in that judgment:
“The complainant points to cases in which the Tribunal observed that the complainant had not been present when statements were taken and not given the opportunity to cross-examine witnesses [...], to object to evidence [...] or to have a verbatim record of the evidence [...] These are matters that, in the cases concerned, would have ensured that the requirements of due process were satisfied. However, they are not the only means by which due process can be ensured. In the present case, the complainant was informed of the precise allegations made against him [...], and provided with the summaries of the witnesses’ testimonies relied upon by the Investigation Panel, even if not verbatim records. He was able to and did point out [...] inconsistencies in the evidence, its apparent weaknesses and other matters that bore upon its relevance and probative value, before the finding of unsatisfactory conduct was made [...] In this way, the complainant was able to confront and test the evidence against him, even though he was not present when statements were made and not able to cross-examine the witnesses who made them.”
In the precedent quoted above, the complainant was informed of the content of the witnesses’ testimonies by written records before the decision; in the present case, the complainant acknowledged the content of the witnesses’ testimonies by means of the Advisory Board’s report, not during the proceedings but only when that report was provided to her attached to the termination decision, that is to say at a stage when she could no longer usefully comment on them.
It can be inferred from the quoted case law that two principles must be respected in an adversarial procedure: (i) not only must the oral evidence gathered be recorded in writing, even though not necessarily by a verbatim record; (ii) but also any evidence gathered must be submitted to the person concerned, for her or his comment, before the decision is adopted.
In the present case, the organisation failed to comply with both principles, as there was no written record of Mr B.’s statement and this statement was not disclosed to the complainant before she was notified of the decision endorsing the Advisory Board’s report.
[…]
In light of consideration 20 […], the Advisory Board’s recommendation is flawed with regard to the assessment of offensive act no. 1 for lack of written record. However, this flaw is not decisive in order to declare that the Advisory Board’s recommendation was unlawful in its entirety. As noted in considerations 21 and 22 [...], the Advisory Board’s finding that the complainant’s conduct amounted to harassment was based on multiple episodes and related evidence sufficient for the purpose of the adoption of measures aimed at the protection of the victim of harassment. Therefore, the Board’s report deserves considerable deference (see Judgments 4488, consideration 7, and 4180, consideration 7).
Reference(s)
ILOAT Judgment(s): 2771, 4180, 4488
Keywords:
disciplinary procedure; evidence; report of the internal appeals body; witness;
Judgment keywords
Keywords:
complaint allowed; disciplinary procedure; termination of employment;
Judgment 4583
135th Session, 2023
European Molecular Biology Laboratory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to terminate his appointment for reasons of professional unsuitability and the decision to place him on special paid leave until the end of his period of notice.
Judgment keywords
Keywords:
complaint allowed; disciplinary procedure;
Consideration 4
Extract:
The Tribunal notes that the concept of “professional unsuitability” is not defined in the Staff Rules and Regulations […] It is, therefore, crucial to establish which was the proper procedure to be followed in the instant case. The Tribunal finds that albeit misconduct and professional unsuitability may sometimes overlap, the organisation does not have an unfettered discretionary power to choose the procedure it prefers on a case-by-case basis. Whenever an official’s conduct amounts potentially to misconduct, the proper procedure to be followed is the disciplinary one, since misconduct must be first proven beyond reasonable doubt. Since a specific disciplinary procedure exists, which is adversarial in nature and therefore better safeguards the right of defence of the official involved, it is this procedure that must be followed whenever unsuitability involves serious misconduct which could lead to dismissal.
Keywords:
disciplinary procedure;
Judgment 4579
135th Session, 2023
Global Fund to Fight AIDS, Tuberculosis and Malaria
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to discharge him.
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)
ILOAT Judgment(s): 191, 3297, 4065, 4444
Keywords:
disciplinary procedure; discretion; role of the tribunal;
Judgment 4497
134th Session, 2022
European Molecular Biology Laboratory
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to summarily dismiss him for serious misconduct.
Consideration 9
Extract:
Moral damages are sought by the complainant for the mental stress of the entire disciplinary procedure and the negative effects it had on him. But the bringing and the prosecution of the charges in disciplinary proceedings were a product of his own conduct for which EMBL cannot be held liable in damages.
Keywords:
disciplinary procedure; moral damages;
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