Judgment No. 4234
1. The decisions of 1 October 2015 and 22 October 2015 are set aside.
2. The OIE shall pay the complainant material damages and interest thereon, calculated as indicated in consideration 10 of the judgment.
3. The Organisation shall pay the complainant moral damages of 10,000 euros.
4. It shall also pay him costs in the amount of 5,000 euros.
5. All the complainant’s other claims are dismissed, as is the OIE’s counterclaim.
The complainant challenges the decision to dismiss him.
complaint allowed; decision quashed; termination of employment
The proposal to dismiss the complainant was drawn up by the Director General and was introduced by the OIE’s counsel at the Council’s meeting. It is not disputed that the Director General and his Deputy did not leave the meeting room after the complainant was heard. The OIE explains in this regard that although those two senior officials are not members of the Council, the applicable rules state that they have to attend its meetings in order, among other reasons, to provide secretarial support. According to the Organisation, they “facilitated” the rest of the meeting but did not participate in the actual deliberations. These explanations are confirmed by the minutes of the meeting of the Council on 1 October 2015, which the Tribunal has examined in camera.
However, the fact remains that, under a general rule of law which is not unique to the international civil service, a person called upon to take a decision affecting the rights or duties of other persons subject to her or his authority must withdraw in cases in which her or his impartiality may be open to question on reasonable grounds. The duty to act impartially is incumbent not only on the authority competent for issuing the final decision, but also on bodies responsible for making a recommendation to this authority (see Judgments 2667, consideration 5, and 3958, consideration 11).
The circumstance that the complainant had initiated criminal proceedings against the Director General was liable to cast doubt on the latter’s impartiality, particularly because in this case the disciplinary action had been taken more than six months after the events and shortly after the submission of the request for compensation for harassment. The Tribunal observes in this respect that the proposal for a disciplinary measure was issued on the same day that the request for compensation for moral harassment was rejected. In these particular circumstances, the Director General ought to have entrusted the matter to the next most senior official whose impartiality could not be disputed (see Judgment 3958, consideration 13).
ILOAT Judgment(s): 2667, 3958
impartiality; conflict of interest
As to the errors and omissions in the management of staff files which were referred to in the performance appraisal reports, these were professional shortcomings. Such shortcomings cannot be equated with misconduct (see, for example, Judgments 247, consideration 13, 1163, consideration 5, 1208, consideration 2, and 3853, consideration 6). Misconduct involves a breach of the duties of an international civil servant in respect of conduct which may trigger disciplinary proceedings and lead to a disciplinary measure. That is not the case for professional shortcomings, which may give rise to various administrative measures, such as a reminder of the applicable rules, a note in a personal file, an unfavourable appraisal or even the non-renewal or termination of a contract (see, for example, Judgment 1405, consideration 4).
The professional shortcomings mentioned in the performance appraisal reports – the last of which led to a 95 per cent downwards adjustment in the complainant’s annual merit bonus – could not give rise to a disciplinary measure.
ILOAT Judgment(s): 247, 1163, 1208, 1405, 3853
performance report; fixed-term; non-renewal of contract; disciplinary measure
The Tribunal considers that the material injury suffered by the complainant will be fairly redressed by ordering the OIE to pay him the equivalent of the salary and various indemnities which he would have received if he had been in service from 1 October 2015 until the end of his fixed-term contract on 11 September 2016, net of any substitute income and income from employment received during that period. The Organisation will also be required to pay him the equivalent of the pension contributions that it would have had to pay for him during the same period. All these amounts shall bear interest at the rate of 5 per cent per annum as from the date on which they fell due until the date of their payment, but an order for the payment of compound interest is not warranted.
The unlawful dismissal caused the complainant substantial moral injury.
Given, in particular, the damage to the complainant’s honour and professional reputation resulting from the grounds on which his employment was terminated, the Tribunal considers it appropriate to award him 10,000 euros in moral damages under this head.