Judgment No. 2854
Decision
1. The Secretary General's decision of 18 December 2007 is set aside.
2. The Federation shall pay the complainant compensation in an amount equivalent to four months' gross salary, allowances and other emoluments in accordance with consideration 23.
3. It shall also pay him moral damages in the amount of 20,000 Swiss francs and costs in the amount of 5,000 francs.
4. The complaint is otherwise dismissed.
Considerations 18-20
Extract:
The complainant asserts that the decision to terminate his contract is tainted with procedural irregularities and amounts to a disguised disciplinary measure.
"In Judgment 2090 the Tribunal explained that the provisions of the Federation's Staff Regulations dealing with termination do not authorise the arbitrary termination of contracts and added, under 5, that 'there must be no breach of adversarial procedure [...] nor abuse of authority, nor obvious misappraisal of the facts'. The same applies to Article 11.4 of the Staff Regulations which deals with termination at will. Further, a decision taken pursuant to the latter must be taken in the interests of the Federation. Thus, a decision purportedly taken under Article 11.4 of the Staff Regulations in the interests of the Federation will be set aside if it constitutes a disguised disciplinary measure. A decision of that kind is not taken in the interest of the Federation but for the purpose of avoiding the procedural requirements that must be observed in the case of disciplinary measures.
"The Tribunal identified a hidden sanction in Judgment 2659 as 'a measure which appears to be adopted in the interests of the Organization and in accordance with the applicable rules, but which in reality is a disciplinary measure imposed as a penalty for a transgression, whether real or imaginary'. The Tribunal also pointed out in that judgment that '[t]he true disciplinary nature of an administrative measure that constitutes a hidden sanction is not always apparent' and that, accordingly, it is 'necessary to examine the particular circumstances in each case'.
"There are a number of matters in the present case that indicate that the decision to terminate the complainant's contract was a disciplinary measure. In this regard, the complainant was requested not to report to his office, his access to electronic files and to e-mail was terminated and he was allowed access to the Federation's building only to collect his personal belongings. Further, the letter of termination [...] referred to the complainant's refusal to accept the Secretary General's instructions and said that his 'defiance of [the Secretary General's] instructions [might] constitute grounds for termination for valid reasons with immediate effect'. The Secretary General had already stated in July 2006 that he considered the complainant had been guilty of misconduct [...] and had then warned him of the consequences of noncompliance with his formulation of principles [...]. Additionally, the Secretary General's letter [...] referred to the 'seriousness of [the] matter and the potential consequences it [might] entail'."
Reference(s)
ILOAT Judgment(s): 2090, 2659
Keywords
termination of employment; disciplinary measure; hidden disciplinary measure; judicial review; definition
Consideration 23
Extract:
The complainant asserts that the decision to terminate his contract is tainted with procedural irregularities and amounts to a disguised disciplinary measure.
"In a case such as the present one where termination constitutes a hidden disciplinary sanction and reinstatement is not appropriate, compensation should be assessed on the basis of what would have occurred if proper procedures had been followed."
Keywords
reinstatement; termination of employment; disciplinary measure; hidden disciplinary measure; judicial review; compensation
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