Judgment No. 4444
1. The FAO shall pay the complainant 5,000 euros in moral damages.
2. The FAO shall pay the complainant 3,000 euros in costs.
3. All other claims are dismissed.
The complainant impugns the decision to dismiss him on disciplinary grounds.
complaint allowed; disciplinary measure; summary dismissal
[The defendant] argues that any claim for material damages that may be inferred from the complaint is irreceivable, pursuant to Article VII, paragraph 1, of the Tribunal’s Statute, because the complainant did not exhaust the internal means of redress available to him regarding such a claim. The Tribunal however observes that, although the complainant did not request material damages in his appeal […] to the Executive Director against the termination decision, he requested material damages in his appeal to the Appeals Committee [….] Moreover, as the Appeals Committee found the complainant’s internal appeal receivable ratione materiae, which would have included the claim for material damages, and the final decision accepted the recommendations of the Committee, the Organization is precluded from raising this plea before the Tribunal.
receivability of the complaint; internal remedies exhausted; estoppel
[I]t is recalled that consistent precedent has it that such decisions are within the discretionary authority of the executive head of an international organization and are subject to limited review. The Tribunal must determine whether a decision taken by virtue of a discretionary authority was taken with authority, is in regular form, whether the correct procedure has been followed and, as regards its legality under the organisation’s own rules, whether the Administration’s decision was based on an error of law or fact, or whether essential facts have not been taken into consideration, or again, whether conclusions which are clearly false have been drawn from the documents in the dossier, or finally, whether there has been a misuse of authority (see Judgment 3297, consideration 8).
Additionally, the Tribunal will not interfere with the findings of an investigative body in disciplinary proceedings unless there is manifest error (see, for example, Judgment 4065, consideration 5).
ILOAT Judgment(s): 3297, 4065
disciplinary measure; discretion; role of the tribunal
The complainant doubts that the Deputy Executive Director was involved in the disciplinary process. He states that he received the communication dated 2 June 2016, which is the “only supposed sign” that the Deputy Executive Director was involved, only after he (the complainant) raised the issue of lack of authority with the Appeals Committee. In his view, the WFP provided no credible explanation as to why that document did not accompany the memorandum of 15 February 2016 (which proposed the adoption of the disciplinary measure) or the memorandum dated 3 June 2016 (which imposed the measure). He states that it was inevitable for him to doubt that the document dated 2 June 2016 actually existed before he raised the issue. In the Tribunal’s view, the fact that the latter document did not accompany the memoranda of 15 February and 3 June 2016 does not mean that it was not validly issued. In any event, there is no rule or principle which required that they be communicated simultaneously.
Given the preponderance of the evidence, including the complainant’s own admissions, the serious nature of his misconduct, as well as the fact that in March 2014 and prior to the commencement of the investigation in November 2014, the complainant was the subject of a written reprimand for improperly adding the spouse of a government official to a recruitment short-list, his contention that dismissal was a disproportionate measure is unfounded.
proportionality; disciplinary measure; summary dismissal
The complainant claims moral damages for extensive delays in the internal appeal process. [The internal process] involved a period of almost three years, which was too long. As the complainant submits that this delay caused him “extreme suffering”, which he has articulated and which the Tribunal accepts, he is entitled to moral damages for which the Tribunal will award him 5,000 euros.
moral injury; delay in internal procedure