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Judgment No. 3295

Decision

The complaint is dismissed.

Summary

The complaint concerning a disciplinary measure was dismissed by the Tribunal on the grounds that he had not demonstrated the existence of an error warranting the cancellation of the sanction.

Consideration 7

Extract:

"It is true that an organisation should investigate allegations of misconduct in a timely manner both in the interests of the person being investigated and the organisation. These interests include, among other things, safeguarding the reputations of both parties and ensuring that evidence is not lost."

Keywords

delay; evidence; inquiry; organisation's duties; misconduct; consequence; duty of care; investigation

Consideration 11

Extract:

"The complainant also takes the position that PAHO failed to give him a warning or the opportunity to correct the situation prior to bringing disciplinary action. In Judgment 1661, under 3, the Tribunal framed an organisation’s obligations in the following terms: “Before an organisation imposes a disciplinary penalty such as dismissal it must warn the staff member and give him the opportunity not only of stating his own case but also of refuting the organisation’s: in other words, there must be due process. So he must be told of the charges and of the evidence against him. If the proceedings are to be properly adversarial, he must be free to give his own version of the facts, refute that evidence, adduce his own, take part in the discussion of it, and at least once crossquestion the expert and other witnesses. See, for example, Judgments 512 […] under 5; 907 […] under 4; 999 […] under 5; 1082 […] under 18; 1133 […] under 7; 1212 […] under 3; 1228 […] under 4; 1251 […] under 8; 1384 […] under 5, 10 and 15; 1395 […] under 6; 1484 […] under 7 and 8.”"

Reference(s)

Jugement(s) TAOIT: 512, 907, 999, 1082, 1133, 1212, 1228, 1251, 1384, 1395, 1484, 1661

Keywords

inquiry; case law; right to reply; due process; organisation's duties; termination of employment; misconduct; disciplinary measure; disciplinary procedure; summary dismissal; investigation

Consideration 13

Extract:

"The complainant alleges that he was not given a copy of the Ethics Officer’s investigation report and the records of witness interviews. It is well established in the Tribunal’s case law that a “staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) its decision against him” (see Judgment 2229, under 3(b))."

Reference(s)

Jugement(s) TAOIT: 2229

Keywords

confidential evidence; inquiry; duty to inform; right; official; investigation; investigation report

Consideration 16

Extract:

"In Judgment 2944, under 50, the Tribunal described the test for proportionality as the disciplinary measure must not be “manifestly out of proportion” to the misconduct. In this case, the Tribunal observes the seriousness of the complainant’s actions. He misused PAHO’s resources and immunity in a fashion that was deliberate and careless; he risked PAHO’s reputation and its relationship with the government of Venezuela; he breached his duty of loyalty to PAHO; and his conduct was incompatible with the performance of his duties as PAHO Country Representative in Venezuela. In these circumstances, it cannot be said that summary dismissal was disproportionate to the misconduct."

Reference(s)

Jugement(s) TAOIT: 2944

Keywords

case law; general principle; proportionality; misconduct; serious misconduct; staff member's duties; disciplinary measure; disciplinary procedure; summary dismissal; discretion; official

Judgment keywords

Keywords

termination of employment; misconduct; disciplinary measure; complaint dismissed

Consideration 8

Extract:

Regarding the question of whether the subject of an investigation must be given notice of the investigation, in Judgment 2605, under 11, the Tribunal held as follows:
“The Tribunal considers that informing a person in advance that an investigation into certain allegations will be undertaken is not a requisite element of due process. Although notification prior to the start of an investigation may well be the preferred course of action, in certain circumstances alerting an individual to the fact that an investigation is to be undertaken may well compromise the investigation. As well, it may be through a routine review or audit that irregularities are encountered. It is once irregularities have been identified that the individual must be informed of the allegations of irregularities with sufficient precision to enable him to respond adequately; he should then be given an opportunity to respond, in particular to defend himself against the allegations, and to make such further response as the circumstances require prior to any conclusions being reached.”

Reference(s)

Jugement(s) TAOIT: 2605

Keywords

duty to inform about the investigation



 
Dernière mise à jour: 28.09.2020 ^ haut