Judgment No. 3106
1. The decision of the Director-General of 8 January 2010 is set aside.
2. UNIDO shall pay the complainant material and moral damages in the sum of 1,000 euros.
3. It shall also pay him costs in the amount of 500 euros.
4. The complaint is otherwise dismissed.
The Organization argues that the complainant's internal appel was irreceivable, because the issues raised in it were determined by the Tribunal in its judgment on one of his earlier complaints, and that the present complaint is therefore barred by res judicata.
"As explained in Judgment 2316, under 11: "Res judicata operates to bar a subsequent proceeding if the issue submitted for decision in that proceeding has already been the subject of a final and binding decision as to the rights and liabilities of the parties in that regard." A decision as to the "rights and liabilities of the parties" necessarily involves a judgment on the merits of the case. Where, as here, a complaint is dismissed as irreceivable, there is no judgment on the merits and, thus, no "final and binding decision as to the rights and liabilities of the parties". Accordingly, the present complaint is not barred by res judicata."
Jugement(s) TAOIT: 2316
receivability of the complaint; internal appeal; res judicata
The principle of freedom of association "precludes interference by an organisation in the affairs of its staff union or the organs of its staff union (see Judgment 2100, under 15). A staff union must be free to conduct its own affairs, to regulate its own activities and, also, to regulate the conduct of its members in relation to those affairs and activities. Thus, it was said in Judgment 274, under 22, that “[t]here could be no true freedom of association if the disapproval of the Director General, whether justified or not, of what was said [in an open letter issued in connection with a staff union referendum] could lead to disciplinary measures”. Further, an organisation must remain neutral when differences of opinion emerge within a staff union: it must not favour one group or one point of view over another. To do so would be to diminish the right of a staff union to conduct its own affairs and to regulate its own activities. Nor does an organisation have any legitimate interest in the actions of staff members in their dealings with their staff union and/or other staff union members with respect to the affairs and activities of the union. Thus, it was said in Judgment 274, under 22, that “[a] staff member’s conduct of [his] private life is not the concern of the Director-General [unless it] brings the Organization into disrepute”, and that trade union activities “likewise constitute an area that is ‘prima facie’ outside the Director- General’s jurisdiction”, although “there may be exceptional cases”."
Jugement(s) TAOIT: 274, 2100
complaint allowed in part; competence; organisation's duties; breach; conduct; organisation's reputation; outside activity; disciplinary measure; staff union; freedom of association; staff union activity; executive head; organisation's interest; difference; right
"The law of defamation is not concerned solely with the question whether a statement is defamatory in the sense that it injures a person’s reputation or tarnishes his or her good name. It is also concerned with the question whether the statement was made in circumstances that afford a defence. Broadly speaking, the defences to a claim in defamation mark out the boundaries of permissible debate and discussion. As a general rule, a statement, even if defamatory in the sense indicated, will not result in liability in defamation if it was made in response to criticism by the person claiming to have been defamed or if it was made in the course of the discussion of a matter of legitimate interest to those to whom the statement was published and, in either case, the extent of the publication was reasonable in the circumstances."
complaint allowed in part; liability; moral injury; respect for dignity; mitigating circumstances; freedom of speech; limits; publication
Any republication of the e-mail at that time amounted to excessive publication and, thus, it is not entitled to the same protection that attached to the original e-mail. This notwithstanding, there is no evidence to suggest that the e-mail on the bulletin board was widely read. Nor is there any evidence to suggest that its presence on the bulletin board was the result of ill will or any intentional act that can be attributed to the Organization. Moreover, it was removed before the complainant sought that course in his request for review of the decision of the Director of PSM/HRM of 15 January 2007. Even so, an organisation has a duty of care to ensure that material that injures the reputation or dignity of its staff members does not find its way into any of its authorised channels of communication. The complainant is entitled to claim against the Organization for its breach of that duty, even though the offending material was removed from the bulletin board before he lodged his internal appeal. In these circumstances, the complainant is entitled to material and moral damages. Given that the evidence does not permit
of a finding that the e-mail was widely read on the bulletin board and, in the absence of evidence of any actual damage to the complainant’s reputation by reason of its presence on the board, the Tribunal assesses those damages at 1,000 euros.
freedom of speech; duty of care
The second aspect of freedom of association that is relevant to the present case is that it necessarily involves freedom of discussion and debate. It was pointed out in Judgment 274, under 22, that “this freedom, when feelings run strong [...] can spill over into extravagant and even regrettable language”. This notwithstanding, the Tribunal has acknowledged that the freedom of discussion and debate is not absolute and that there may be cases in which an organisation can intervene if, for example, there is “gross abuse of the right to freedom of expression or lack of protection of the individual interests of persons affected by remarks that are ill-intentioned, defamatory or which concern their private lives” (see Judgment 2227, under 7). Within this context, it is convenient to consider the allegedly defamatory nature of the e-mail in question.
Jugement(s) TAOIT: 274, 2227
freedom of association; definition; defamation