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Judgment No. 4310

Decision

1. The Director-General’s decision of 21 March 2017 is set aside.
2. The ILO shall pay the complainant moral damages in the amount of 15,000 Swiss francs.
3. It shall also pay him 750 Swiss francs in costs.
4. All other claims are dismissed.

Summary

The complainant challenges the decision to apply the sanction of summary dismissal to him.

Judgment keywords

Keywords

complaint allowed; misconduct; summary dismissal

Consideration 5

Extract:

Apart from the question of whether the IAO may ex officio carry out an investigation into an official on the basis of the findings of an audit which it is conducting, an investigation must in any event be opened by a formal decision so that the lawfulness of the procedure may subsequently be reviewed. Such review is not possible if the decision is verbal.

Keywords

opening of an investigation

Consideration 6

Extract:

Although this is not an indispensable condition for due process (see Judgments 3295, under 8, and 4106, under 9), it is preferable that the subject of an investigation should be notified of the opening of an investigation into her or his conduct and the charges against her or him before being heard, so that she or he has an opportunity to explain her or his conduct and to submit any exculpatory evidence. If this does not occur, that information must, in any event, be provided at the beginning of the hearing.
[A]t the beginning of the interview, one of the investigators explained that it was a “follow-up” to the audit report of 2012 and to “certain things” that had come to the IAO’s attention. He then emphasised that the interview was confidential, adding that “for example, [the] report goes to the Director-General afterwards. [There’s] a committee in Geneva which is responsible for reading reports from the [Investigation] Unit, and then [makes] direct recommendations to the Director-General.” Given that the complainant had not been notified in advance and was unaware of the content of the 2012 audit report, such general statements cannot be considered sufficient to inform him of the opening of an investigation and the charges against him. The investigators failed to indicate plainly the allegations against him. They merely questioned him on the events leading to the finding of misconduct on eight counts for which the disciplinary sanction was ultimately imposed. It is true that at the end of the interview, the investigators mentioned, in a very cursory manner, that a report on the interview would be forwarded to the Director of the IAO and the Committee on Accountability, which could recommend “disciplinary action or sanctions or things like that” to the Director-General. However, that explanation had to be clearly expressed at the beginning of the interview.

Reference(s)

Jugement(s) TAOIT: 3295, 4106

Keywords

procedural rights during investigation; opening of an investigation; notification of allegations

Consideration 9

Extract:

It is not disputed that the above rules were not complied with. On this issue the ILO submits that the Committee’s Rules of Procedure, and in particular paragraph 13, reflect a practice that has gradually become superfluous following the establishment of the IAO, which is the only unit authorised to conduct investigations. Given that an official under investigation is heard by the IAO and notified of the procedure, she or he is fully informed of the content of the case file forwarded to the Committee, which hence no longer needs to provide it to the official concerned. The Rules of Procedure were being revised and would be published shortly on the Committee’s website.
However, the Tribunal observes that, so long as the rules are neither amended nor repealed, the principle tu patere legem quam ipse fecisti requires the Organization to apply them (see Judgment 3883, under 20). That principle is particularly applicable in disciplinary matters (see Judgment 3123, under 10).

Reference(s)

Jugement(s) TAOIT: 3123, 3883

Keywords

patere legem; practice; disciplinary procedure

Consideration 10

Extract:

[T]he ILO argues that the adversarial principle was duly observed, having regard to the procedure as a whole. It submits that the complainant must have been aware of the content of the investigation report of January 2015 and the allegations made against him, as one of the investigators had explained to him that a report would be compiled on the basis of the interview he had just held with him. During that interview, the complainant was given ample opportunity to respond to the allegations made against him. Furthermore, it submits that the complainant was given the opportunity to provide additional information when he was invited to submit his observations on the proposal for a sanction, which he did. The ILO hence concludes that the complainant exercised his right to be heard on several occasions during the procedure and, in any case, before the final decision to impose a sanction was taken.
However, the fact that the complainant was interviewed during an investigation into certain events and had the opportunity to answer questions relating to those events does not, as the Organization suggests, imply that he was aware of the content of the investigation report subsequently drawn up on the basis of that interview, or of the allegations ultimately upheld by the IAO and the reasons why they were upheld.

Keywords

adversarial proceedings; procedural rights during investigation; due process in disciplinary procedure

Consideration 11

Extract:

[I]t [cannot] be argued that the Committee on Accountability’s report [...] – communicated to the complainant [...] at the same time as the proposal to dismiss him summarily – constituted adequate information. That very brief report merely listed the headings of the allegations against him.

Keywords

due process in disciplinary procedure

Consideration 11

Extract:

It is not disputed that the complainant had never seen the IAO’s investigation report prior to filing his complaint with the Tribunal on 19 June 2017. Having regard to the Organization’s explanations, it seems that the report was not provided to him until 6 September 2017.
The Joint Advisory Appeals Board rightly considered that, in those circumstances, the adversarial principle and, more particularly, the complainant’s rights of defence had been breached.
As the Tribunal has repeatedly held, a staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) a decision affecting her or him personally. Such evidence cannot be withheld on grounds of confidentiality unless there is some special case in which a higher interest stands in the way of disclosure (see Judgments 3732, under 6, and 3755, under 10), which was not the case here.
The fact that the complainant was ultimately able to obtain the IAO investigation report during the proceedings before the Tribunal does not, in this case, remedy the flaw in the procedure. While the case law recognises that, in some cases, the non-disclosure of evidence can be corrected when this flaw is subsequently remedied, including in proceedings before the Tribunal (see, for example, Judgment 3117, under 11), that is not the case where the document in question is of vital importance having regard to the subject matter of the dispute, as it is here (see Judgments 2315, under 27, 3490, under 33, 3831, under 16, 17 and 29, and 3995, under 5).

Reference(s)

Jugement(s) TAOIT: 2315, 3117, 3490, 3732, 3755, 3831, 3995

Keywords

due process in disciplinary procedure; investigation report; confidentiality

Consideration 13

Extract:

The complainant seeks reinstatement at the ILO. As a rule, an official dismissed on disciplinary grounds whose dismissal is set aside is entitled to be reinstated. However, the Tribunal may refuse to make such an order if reinstatement is no longer possible or if it is inappropriate. According to the Tribunal’s case law, reinstatement is inadvisable when an employer has valid reasons for losing confidence in an employee (see, in particular, Judgments 1238, under 4, and 3364, under 27) [...].

Reference(s)

Jugement(s) TAOIT: 1238, 3364

Keywords

reinstatement; termination of employment; disciplinary measure

Consideration 15

Extract:

It is well settled in the case law that internal appeals must be conducted with due diligence and in a manner consistent with the duty of care an international organisation owes to its staff members (see Judgments 3160, under 16, 3582, under 3, and 4100, under 7). The JAAB and the Organization acknowledge the delay in considering the internal appeal, which took more than 18 months. Such a duration is excessive.

Reference(s)

Jugement(s) TAOIT: 3160, 3582, 4100

Keywords

delay in internal procedure

Consideration 15

Extract:

The unlawfulness of the procedure which led to the complainant’s summary dismissal and its excessive length caused moral injury to the complainant, who was suspended without salary and remained uncertain as to his professional situation for an unacceptably long time.

Keywords

moral injury; summary dismissal; suspension



 
Dernière mise à jour: 14.10.2020 ^ haut