Judgment No. 3880
1. The FAO Director-General’s 17 April 2014 decision is set aside, as are the WFP Executive Director’s decision of 6 December 2012 and the Acting Director, HRD’s decision of 27 July 2012.
2. The FAO shall pay the complainant material damages in an amount equal to the deductions made as a result of the imposition of the disciplinary measure of a two-week suspension without pay.
3. The FAO shall pay the complainant moral damages in the amount of 10,000 euros.
4. The FAO shall pay the complainant costs in the amount of 7,000 euros.
5. All other claims are dismissed.
The complainant challenges the Director-General’s finding of misconduct and the imposition of the disciplinary measure of suspension without pay for two weeks, and claims excessive delay in the disciplinary and internal appeal proceedings.
disciplinary measure; suspension
It is “well settled case law that the burden of proof rests on an organization to prove the allegations of misconduct beyond a reasonable doubt before a disciplinary sanction is imposed” (Judgment 3649, under 14). It is also well established that a staff member accused of misconduct is presumed to be innocent (Judgment 2879, under 11) and is to be given the benefit of the doubt (Judgment 2849, under 16). It is observed that the FAO did not cite nor is there any support in the case law for its position before the Appeals Committee that the “beyond a reasonable doubt” standard did not apply in this case. Moreover, it conflates two distinct parts of the misconduct process: the finding of misconduct (if proven beyond a reasonable doubt) and the subsequent imposition of an appropriate sanction for the misconduct.
Based on a reading of the Appeals Committee’s report and the Director-General’s impugned decision, it appears that in each instance the standard of proof applied was whether there was sufficient evidence to support the finding of misconduct. Whether there is sufficient evidence to support a finding of misconduct is a far less onerous evidentiary burden than the requisite “beyond a reasonable doubt” standard of proof. The application of the incorrect standard of proof is a fundamental error of law and requires, on this ground alone, that the impugned decision be set aside.
ILOAT Judgment(s): 2849, 2879, 3649
evidence; misconduct; standard of proof
Although the disciplinary process itself was lengthy, given the complexity of the case, the time necessary to properly respond to the complainant’s numerous requests and the time necessary to assess the evidence and to determine what charges, if any, should be made, it cannot be said that there was inordinate delay in the disciplinary proceedings.
delay; disciplinary procedure
For a finding of misconduct to withstand scrutiny, each of the elements of the alleged misconduct must be proved beyond a reasonable doubt. As a starting point, in the case of an alleged curfew violation, the organization bears the burden of proving the existence of the curfew that was allegedly violated and that the curfew applied to the staff member. In the present case, it is clear that there were three curfews in place [...] at the material time, although one was only in force intermittently. The key issue was whether the curfew the complainant allegedly violated applied to him. The resolution of this issue is contingent on first establishing which curfew it is that the complainant allegedly breached. Given the confusion and the shifting that occurred in relation to the specific curfew allegedly breached, this was not established. Based on the evidence, there is a case to be made that the MONUC curfew did not apply to the complainant. There is also a case to be made that the UNDSS curfew did apply to the complainant. In these circumstances a finding of misconduct could not properly be made.