Judgment No. 1763
1. The decision of 5 August 1996 to dismiss the complainant and the one of 16 December 1996 confirming it are set aside.
2. The case is sent back to the IAEA for reconsideration.
3. The complainant is reinstated as from 5 August 1996.
4. The Agency shall pay him 5,000 United States dollars in costs.
5. His other claims are dismissed.
"[W]ith respect to the complainant's submission that the Disciplinary Board's report is not valid because it is not dated, signed or otherwise authenticated, the 'report' is actually a summary record of the Board's meetings. There is no evidence whatsoever to indicate that the record is not an accurate summary of the Board's views, and it was clearly adopted by the Board, as well as the [Organisation], as representing them. The substance of the summary record clearly indicates the conclusion of the Board. There is thus no irregularity in the form of the report."
claim; complaint allowed in part; formal requirements; report; disciplinary procedure; formal flaw
Considerations 15 and 17
The complainant is accused of having cheated the Organisation by falsifying airline tickets intended for official travel. "[T]he Director of the Division of Personnel [...] was both the chairman of the Disciplinary Board and the head of the department conducting the initial investigation. That the Director of the Division of Personnel should be chairman of the Board is required by paragraph 13(a) of section 13, Part II, of the Agency's Administrative Manual and does not constitute a procedural flaw, but does give rise to a situation in which there is a grave danger of an actual breach of procedural fairness. That is what in fact occurred. As the chairman of the Disciplinary Board, the Director had to refrain from personal involvement in the investigation. He must not be both judge and policeman. That, however, is what happened on at least one occasion. [...] This constitutes a serious breach of due process. [...] As chairman of the Joint Disciplinary Board, the Director of the Division of Personnel had a duty to be and to appear to be impartial."
Organization rules reference: PARAGRAPH 13(A) OF SECTION 13, PART II, OF IAEA'S ADMINISTRATIVE MANUAL
complaint allowed in part; advisory body; composition; inquiry; due process; equity; staff regulations and rules; disciplinary procedure; procedural flaw; bias
The complainant is accused of having cheated the Organisation by falsifying airline tickets intended for official travel. "[T]he Appeals Board asked for and received a legal opinion from the Director of the Legal Division during the appeal. This [...] was a violation of due process because that Director had been a member of the Disciplinary Board, whose recommendation was under appeal. The Agency admits that the Director signed a legal opinion that had been prepared at the request of the Appeals Board. That opinion should not have been given by the Director and should have been rejected by the Appeals Board; the Director simply should not have been involved, in substance or in form, with the Appeals Board's recommendation. A member of the body appealed from may not give legal advice to the body which hears the appeal."
complaint allowed in part; internal appeals body; advisory body; composition; internal appeal; report; equity; disciplinary procedure; procedural flaw; bias; advisory opinion