Judgment No. 1238
1. THE DECISIONS OF 21 JULY 1987 AND 20 FEBRUARY 1992 ARE QUASHED.
2. THE ORGANIZATION SHALL PAY THE COMPLAINANT THE SALARY, ALLOWANCES AND OTHER ENTITLEMENTS WHICH HE WOULD HAVE RECEIVED HAD HE REMAINED IN ITS EMPLOY FROM 22 JULY 1987 TO THE DATE OF THIS JUDGMENT.
3. IT SHALL REINSTATE HIM AS FROM THE DATE OF THIS JUDGMENT.
4. IF IT CANNOT DO SO IT SHALL PAY HIM ADDITIONAL DAMAGES EQUIVALENT TO THE SALARY, ALLOWANCES AND OTHER ENTITLEMENTS WHICH HE WOULD HAVE RECEIVED OVER A PERIOD OF TWO YEARS HAD HE BEEN REINSTATED AS FROM THE DATE OF THIS JUDGMENT.
5. THE ORGANIZATION SHALL EXPUNGE THE ADVERSE REMARKS FROM HIS PERFORMANCE APPRAISAL REPORT FOR 1985-86.
6. IT SHALL PAY HIM $2,500 IN COSTS.
7. HIS OTHER CLAIMS ARE DISALLOWED.
"An employee who is wrongfully dismissed is ordinarily entitled to reinstatement. But the Tribunal may refuse to order it if it is not possible or advisable. It would not, for instance, order reinstatement if the circumstances of the dismissal were such that it would no longer be reasonably possible for the employee to perform his duties effectively or harmoniously or for the employer to continue to feel confidence or trust in him."
tribunal; reinstatement; termination of employment; working relations; organisation's interest; flaw
"Even if the Director-General has discretion to refuse reinstatement 'in the interest of the organization' he must exercise it fairly and reasonably after considering all the material facts. Here the facts were that the complainant had throughout had irreproachable appraisal reports. [...] Despite surveillance, without his knowledge, for six months prior to [the incident that led to his dismissal] no wrongdoing, negligence or irregularity on his part was discovered. [...] The Director-General has failed to take into consideration the above material facts and has erred in treating the complainant as guilty of a 'cover-up'. The refusal of reinstatement was thus not a proper exercise of whatever discretion he had in the matter."
complainant; organisation; negligence; performance report; reinstatement; termination of employment; discretion; limits; organisation's interest; disregard of essential fact; flaw; mistake of fact; refusal; right
The Tribunal ordered the complainant's reinstatement in Judgment 999. But the Director-General decided that reinstatement was not in the interest of the organization and awarded him compensation. "To condemn someone to unemployment on account of a single negligent act unaccompanied by improper intention, and in circumstances that do not justify loss of confidence by the employer, is to demand a humanly impossible standard of performance by the employee and makes the right to reinstatement illusory."
ILOAT Judgment(s): 999
complainant; organisation; good faith; negligence; proportionality; reinstatement; termination of employment; discretion; limits; organisation's interest; refusal; right
"In the circumstances the refusal of reinstatement is not justified, and the fact that dismissal occurred over five years ago does not stand in the way of reinstatement, especially since the complainant was not responsible for any of the delay. He is accordingly entitled to reinstatement."
reinstatement; termination of employment; discretion; limits; organisation's interest; mistake of fact; date; refusal; right
The Tribunal orders the complainant's reinstatement. The organization "must do its utmost to reinstate him in the post which he held [...] or in any comparable one acceptable to him. Only if that proved impossible should it pay him additional damages equivalent to the salary, allowances and other entitlements which he would have received over a period of two years had he been reinstated in its employ as from the date of this judgment."
judgment of the tribunal; post held by the complainant; post; reinstatement; salary; allowance; termination of employment; flaw; compensation; date