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Judgment No. 1391

Decision

1. THE IMPUGNED DECISION IS QUASHED.
2. THE ORGANISATION SHALL PAY THE COMPLAINANT THE ARREARS OF SALARY DUE TO HIM TOGETHER WITH INTEREST TO BE RECKONEDAT THE RATE OF 8 PER CENT A YEAR.
3. IT SHALL PAY 500 GERMAN MARKS IN COSTS.

Consideration 8

Extract:

"Decisions taken by the organisation are subject to review on grounds such as bias, bad faith, malice and abuse of authority. When seeking to defend his interests by impugning any such decision, an employee is entitled to allege and attempt to establish such grounds. A fair decision cannot be reached upon such matters by an internal appeals body or by this Tribunal if witnesses, parties and their representatives are unable to speak candidly and without the risk of incurring a penalty for what they may say, and especially if one party is unduly inhibited by the fear that failure to prove his case my make him liable to disciplinary action by the other party."

Keywords

complaint; complaint allowed; complainant; internal appeals body; internal appeal; tribunal; decision quashed; submissions; evidence; burden of proof; testimony; freedom of speech; disciplinary measure; judicial review; misuse of authority; bias

Consideration 10

Extract:

The complainant was subject to disciplinary action for having made statements, some of them before the Tribunal, which allegedly impaired the organisation's and the Tribunal's reputations. The Disciplinary Committee asked whether the punishment of offensive remarks "for which there is no clear justification supported by evidence" would infringe the complainant's rights. The Tribunal holds that "such a test laid an undue burden on the complainant in that if he was to avoid the risk of disciplinary action he must prove the truth of his allegations. No such burden should have been put on him. The mere failure to prove the truth of his allegations did not mean that he had either abused his freedom of speech or forfeited the immunity or privilege of judicial proceedings."

Keywords

complaint; complaint allowed; complainant; tribunal; vexatious complaint; decision quashed; submissions; evidence; burden of proof; freedom of speech; organisation's reputation; disciplinary measure; criteria

Consideration 11

Extract:

"A litigant whose submissions contain language that is unacceptable, or ill-chosen, or damaging, or unseemly, does not thereby lose the immunity that attaches to statements made in judicial proceedings".

Keywords

complaint; complaint allowed; complainant; vexatious complaint; decision quashed; submissions; freedom of speech; organisation's reputation

Consideration 12

Extract:

The complainant was subject to disciplinary action for statements, some of them before the Tribunal, which allegedly impaired the organisation's and the Tribunal's reputations. "Disciplinary action will be justified only if the staff member's conduct amounts to abuse of process or to a perversion of the right ofappeal. Such, for example, will be the case if his allegations 'are clearly wholly unfounded' (see Judgment 99 [...]); or if he appeals 'to the Tribunal for the purpose of lending force to the wild and unnecessarily wounding allegations [...] repeatedly made against the organisation' and has thereby 'entirely perverted from its proper purpose the right of appeal' to the Tribunal and has 'affronted the dignity of his organisation and of the Tribunal (see Judgment 96 [...]); or if his actions 'could neither have been directed to defending [his] freedom and rights, however widely interpreted, nor [...] make the slightest contribution to the disposal of the proceedings' (see Judgment 111 [...])."

Reference(s)

ILOAT Judgment(s): 96, 99, 111

Keywords

complaint allowed; right of appeal; vexatious complaint; decision quashed; case law; conduct; organisation's reputation; disciplinary measure; criteria



 
Last updated: 06.11.2017 ^ top