Judgment No. 4237
The complaint is dismissed.
The complainant challenges the decision – taken after his resignation – to find him guilty of serious misconduct, and the decision to withhold from his separation entitlements an amount corresponding to financial losses allegedly incurred by WHO as a result of his misconduct.
misconduct; complaint dismissed
As the Tribunal explained in Judgment 3971, under 8, “[a]ll claims regarding the complainant’s suspension, house ban [...] are irreceivable for failure to exhaust the internal means of redress. The complainant did not file an internal appeal challenging those decisions separately [...] and cannot do so now in the present complaint. The house-ban decision as well as the suspension decision have, by themselves, an immediate, material, legal, and adverse effect on the person concerned, and are not subsumed under the final decision taken at the conclusion of any disciplinary proceedings. Consequently, they cannot be considered as mere steps leading to the final decision taken at the conclusion of the proceedings and, according to the Tribunal’s case law, must be challenged by themselves, and not as a part of the final decision (see Judgments 1927, under 5, 2365, under 4, and 3035, under 10).”
Jugement(s) TAOIT: 1927, 2365, 3035, 3971
According to the Tribunal’s case law (see, for example, Judgments 3757, under 6, 4024, under 6, 4026, under 5, and 4091, under 17), “where an internal appeal body has heard evidence and made findings of fact, the Tribunal will only interfere if there is manifest error (see Judgment 3439, consideration 7)”. Moreover, where there is an investigation by an investigative body in disciplinary proceedings, “it is not the Tribunal’s role to reweigh the evidence collected by an investigative body the members of which, having directly met and heard the persons concerned or implicated, were able immediately to assess the reliability of their testimony. For that reason, reserve must be exercised before calling into question the findings of such a body and reviewing its assessment of the evidence. The Tribunal will interfere only in the case of manifest error (see Judgments 3682, under 8, and 3593, under 12)” (see Judgment 3757, under 6).
Jugement(s) TAOIT: 3439, 3593, 3682, 3757, 3757, 4024, 4026, 4091
internal appeal; evidence; inquiry
Taking into account all of the circumstances, including the factual and legal complexity of the proceedings, the number of steps in the process (the IOS investigation, the two appeals before the RBA and the appeal before the GBA), the total length of the procedure was not unreasonable. The claim for moral damages for excessive delay is rejected.
internal appeal; delay; moral damages