Judgment No. 1384
Decision
1. THE DIRECTOR-GENERAL'S DECISION OF 4 AUGUST 1993 IS QUASHED.
2. THE ORGANIZATION SHALL REINSTATE THE COMPLAINANT ON THE TERMS SET OUT IN 18(A).
3. IT SHALL GRANT HIM A CONTRACT OF APPOINTMENT FOR A PERIOD OF TWO YEARS STARTING AT THE DATE OF DELIVERY OF THIS JUDGMENT.
4. IT SHALL PAY HIM 6,000 DOLLARS IN DAMAGES FOR MORAL INJURY.
5. IT SHALL PAY HIM 4,000 DOLLARS IN COSTS.
Consideration 9
Extract:
"As the Tribunal has consistently affirmed - more recently, for example, in Judgment 1317 [...], under 24 and 28 - an organisation is required to give a reason for [the] non-renewal [of a fixed-term appointment]".
Reference(s)
Jugement(s) TAOIT: 1317
Keywords
decision; duty to substantiate decision; case law; contract; fixed-term; non-renewal of contract
Consideration 15
Extract:
The complainant was accused of removing computer equipment from the work place. For that reason the organization did not renew his fixed-term contract. "There were many flaws in the procedure that the organization followed. It did not allow the complainant to be present when statements were taken from the witnesses or to question them. [...] Not only was he denied access to their statements but even their identity was concealed from him. [...] No verbatim record of the statements by the witnesses was ever produced." He never got to see the results of the investigation carried out into the matter and he was not given an opportunity to put forward any arguments in his favour. "The conclusion is that he was denied his right to defend himself before an adverse decision was taken [...]. The complainant's right of defence was seriously prejudiced."
Keywords
inquiry; right to reply; due process; contract; fixed-term; non-renewal of contract; misconduct; conduct; flaw; procedural flaw; investigation
Consideration 15
Extract:
Vide Judgment 999, consideration 4
Reference(s)
Jugement(s) TAOIT: 999
Keywords
evidence; case law; right to reply; misconduct
Consideration 16
Extract:
The complainant was accused of removing computer equipment from the work place. For that reason the organization decided not to renew his fixed-term appointment. "The decision not to renew the complainant's contract was based on loss of confidence consequent upon the finding of misconduct. That finding was based on an error of law as to the burden of proof; rules of procedure relating to the right of defence were seriously violated; essential facts were not taken into consideration; and clearly mistaken conclusions were drawn from the facts. so the finding cannot stand, and the plea of loss of confidence which the organization based thereon must be rejected."
Keywords
evidence; burden of proof; right to reply; breach; contract; fixed-term; non-renewal of contract; misconduct; conduct; disregard of essential fact; mistaken conclusion
Consideration 11
Extract:
The complainant was accused of removing computer equipment from the work place. The organization accordingly decided not to renew his fixed-term appointment. After carrying out an inquiry, the regional director submitted a first report which "showed that there was at most mere suspicion that the complainant might have been involved. There was no basis on which the organization could contend that the charge of theft had been satisfactorily proved. What it did in effect was to reverse the burden of proof by expecting the complainant to show that hisconduct was 'spotless'."
Keywords
evidence; burden of proof; lack of evidence; presumption of innocence; inquiry; contract; fixed-term; non-renewal of contract; misconduct; conduct; investigation
Consideration 17
Extract:
The complainant was charged with removing computer equipment from the work place but no evidence of theft was ever produced. "The decision not to renew his contract, based as it was on a finding of theft, must have seriously harmed his moral and social standing and his prospects of finding other employment."
Keywords
moral injury; professional injury; contract; fixed-term; non-renewal of contract; misconduct
Consideration 18
Extract:
The organization accused the complainant of removing computer equipment from the work place. It decided not to renew his fixed-term appointment on the grounds of theft. "The damage to the complainant's career and reputation is so grave that nothing short of reinstatement and the grant of a further contract of employment will suffice."
Keywords
moral injury; professional injury; contract; reinstatement; fixed-term; non-renewal of contract; compensation
Considerations 17-18
Extract:
The organization accused the complainant of stealing computer equipment but failed to provide any formal evidence of theft. On the grounds of theft it decided not to renew his fixed-term appointment. The Tribunal sets that decision aside in part for the organization's breach of his right to a hearing and holds that "the flagrant disregard of his right of defence caused him further moral injury" for which he is entitled to an award of damages.
Keywords
moral injury; right to reply; breach
Consideration 18
Extract:
The complainant was accused of stealing computer equipment but no formal proof of this was ever given. The organization decided not to renew his fixed-term appointment on grounds of theft. The Tribunal holds that the complainant "must be put in the same position as if his contract had never terminated and be reinstated as from the date of termination up to the date of this judgment. Since his performance was good he should be granted any within-grade salary increases he would ordinarily have been entitled to. Although any indemnities or earnings from employment after termination may be deducted from the amounts due, he is entitled to the payment of interest on all arrears of pay at the rate of 8 per cent a year from the dates at which each component sum fell due. [...] He is to be granted an appointment for a period of two years starting at the date of delivery of this judgment."
Keywords
professional injury; interest on damages; reconstruction of career; increment; reckoning; contract; reinstatement; fixed-term; non-renewal of contract; procedural flaw; compensation; date
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