Judgment No. 2892
1. The Secretary-General's decision of 13 December 2007 is set aside, as is the earlier decision of the Deputy Secretary General of 16 March 2007 suspending the complainant from duty.
2. The Deputy Secretary-General's decision of 4 September 2007 is set aside.
3. The ITU shall pay the complainant the full salary and other entitlements, including the step increment payable on 1 August 2007, that he would have received if his contract had expired on 21 March 2008, together with all allowances that would then have been payable. All such amounts shall bear interest at the rate of 8 per cent per annum from due dates until the date of payment. The complainant shall give credit for any salary and/or associated allowances earned by him in the period 7 September 2007 to 21 March 2008.
4. The ITU shall pay the complainant material damages equivalent to one year's salary and other entitlements with respect to his dismissal.
5. It shall also pay him moral damages in the sum of 25,000 Swiss francs.
6. Any document or other report relating to the complainant's performance appraisal for the year 2006 shall be removed from his personal file.
7. The ITU shall pay the complainant costs in the sum of 12,000 francs.
8. All other claims are dismissed.
Considerations 6 to 8
"The ITU argues that the [...] complaint with respect to the
complainant's dismissal is [...] irreceivable on the basis that, as he has not pursued his internal appeal following his request [...] for a final review of the decision to dismiss him [...]. [T]he question remains whether the Staff Regulations and Staff Rules permit an internal appeal once a person has ceased to be a staff member. If they do not, the steps taken by the complainant to initiate an internal appeal were ineffective. More to the point, there were no internal remedies that he could pursue before lodging his complaint."
"Chapter XI of the ITU Staff Regulations and Staff Rules makes provision for appeals by staff members. [...] There is nothing in Chapter XI of the Staff Regulations and Staff Rules to indicate that a former staff member may lodge an appeal as therein provided. [...] In these circumstances, the term "staff member" in Chapter XI is to be construed as restricted to a serving staff member."
"In Judgment 2840, also a case where the relevant regulations and rules relating to internal appeals referred only to a "staff member" and not a "former staff member", it was held that "where a decision has not been communicated until after a staff member has separated from service, the former staff member does not have recourse to the internal appeal process". The same is true of a staff member who has either been summarily dismissed or dismissed with such short notice that it is impracticable to commence internal appeal proceedings before the dismissal takes effect."
ILOAT Judgment(s): 2582, 2840
complaint allowed in part; status of complainant; international civil servant; receivability; direct appeal to tribunal; internal remedies exhausted; vexatious complaint; staff regulations and rules; definition
"The first argument advanced by the complainant in relation to the decision to suspend him from duty is that the Deputy Secretary-General had no authority to take such a decision but, rather, as the Secretary-General was an interested party, the question of suspension should have been referred to the ITU Council [...]. It is correct that it was incumbent on the Secretary-General to refrain from taking any decision concerning the incidents that occurred in his office [...]. As stated in Judgment 179, "his impartiality may be open to question on reasonable grounds". Although Staff Rule 10.1.3 refers only to suspension by the Secretary-General, the doctrine of necessity allows that, where there is a conflict of interest, authority is to be granted to some other appropriate person. However, that does not mean that the question should have been referred to the Council. That body has certain powers with respect to elected officials, but not with respect to unelected officials. As an elected official and as the next most senior official, the Deputy Secretary-General was the appropriate person to exercise authority with respect to the incidents that occurred [...], even if the relevant provision did not so provide."
ILOAT Judgment(s): 179
complaint allowed; complaint allowed in part; decision; challenge of member; competence; no provision; executive body; bias
"It does not follow that, because the Administration has failed to prove misconduct, the charge of serious misconduct was "specious" or part of a campaign of bullying and intimidation, as claimed by the complainant. On that issue the complainant bears the onus of proof. And as the evidence [...] is inconclusive, his claims in this regard must be rejected."
complaint allowed; complaint allowed in part; evidence; burden of proof; misconduct; serious misconduct
"[T]he claim [...] that the performance appraisal made by the Secretary-General "be quashed and removed from his personal file" is receivable. It is not clear whether any performance appraisal report has been placed in the complainant's file. But it is clear that the relevant performance appraisal procedures were never completed. In these circumstances, it will be ordered that any performance appraisal report for the year 2006 that has been placed in his file be removed from it."
complaint allowed; complaint allowed in part; status of complainant; direct appeal to tribunal; internal remedies exhausted