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Hidden disciplinary measure (510,-666)

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Keywords: Hidden disciplinary measure
Total judgments found: 27

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  • Judgment 4077


    127th Session, 2019
    Universal Postal Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The UPU applies for interpretation and review of Judgment 3928 alleging errors of fact, inter alia, and asserts that it is impossible to give effect to the Tribunalís order to reinstate the complainant. The complainant applies for execution of Judgment 3928.

    Consideration 25

    Extract:

    [T]he [organization] could not refer to the complainantís alleged misconduct as a reason not to reinstate him as no disciplinary proceeding has occurred in that regard, so misconduct has never been proven. It is all the more grave when considering that the alleged reason for the abolition of the posts was because of financial constraints. The abolition of a post can never be based on a staff memberís conduct, as that would constitute a hidden sanction. The [organization]ís presentation before the Council of Administration constituted a breach of the duty of care and of the adversarial principle, as the complainant was not given any opportunity to defend himself and his reputation from the allegations. The UPU must respect the dignity of its staff and preserve their reputation.

    Keywords:

    abolition of post; adversarial proceedings; budgetary reasons; due process; duty of care; hidden disciplinary measure; misconduct; reinstatement;



  • Judgment 3848


    124th Session, 2017
    International Organization for Migration
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to renew his special short-term contract for serious misconduct.

    Consideration 9

    Extract:

    The Director Generalís unlawful imposition of a disguised disciplinary measure deprived the complainant of the requirements of due process and consultation with the Staff Association Committee that would have been open to him in an adversarial proceeding had a disciplinary measure been imposed.

    Keywords:

    due process; hidden disciplinary measure;

    Judgment keywords

    Keywords:

    hidden disciplinary measure; misconduct; non-renewal of contract; short-term;

    Considerations 6-7

    Extract:

    Although it is true that the non-renewal of a contract is not one of the disciplinary measures that the Director General may impose pursuant to Staff Regulation 10(b), it does not follow, as IOM contends, that the decision not to renew the complainantís contract was a discretionary decision. A finding of misconduct is one that is only made in the context of a disciplinary process. For example, in contrast with an administrative determination regarding unsatisfactory service, misconduct must be proved beyond a reasonable doubt, a standard of proof that is only applicable in a disciplinary proceeding. Further, a finding of misconduct is the final step in the disciplinary process before the imposition of a disciplinary measure.
    In the present case, it is not disputed that the decision not to renew the complainantís contract was based solely on the finding of misconduct. In these circumstances, the only conclusion that can be drawn is that the non-renewal of the complainantís contract was not an administrative discretionary decision, it was a disguised disciplinary measure and was unlawful. The case law consistently states that even if an organizationís regulations, rules and other relevant documents do not provide for formal disciplinary procedures, the disciplinary process requires that ďbefore deciding a disciplinary sanctionĒ the concerned staff member must be given ďample opportunity to take part in adversarial proceedings, in the course of which he is given the opportunity to express his point of view, put forward evidence and participate in the processing of the evidence submitted in support of the charges against himĒ (see Judgment 3682, consideration 12).

    Reference(s)

    ILOAT Judgment(s): 3682

    Keywords:

    case law; disciplinary procedure; hidden disciplinary measure; misconduct;



  • Judgment 3139


    113th Session, 2012
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 4-5

    Extract:

    The complainant has no grounds to regard the refusal to renew her contract as a disguised disciplinary measure imposed in retaliation for the internal appeals against her suspension [...].
    Moreover, the decision of 31 March 2010 cannot be regarded as a dismissal decision; it was simply a decision not to renew a contract which was due to expire because, at that date, no request for review having been submitted within the prescribed time limit, the decision of 17 November 2009 extending the complainantís appointment for five months had become final (see Judgment 3140, also delivered this day).
    Although the decision of 31 March 2010 was therefore neither a disciplinary measure nor a dismissal, the complainantís right to be heard had to be respected nonetheless.

    Reference(s)

    ILOAT Judgment(s): 3140

    Keywords:

    hidden disciplinary measure; non-renewal of contract; right to be heard; termination;



  • Judgment 2907


    108th Session, 2010
    United Nations Industrial Development Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 23

    Extract:

    "[T]he existence of a hidden disciplinary measure cannot be inferred from mere conjecture and could not be accepted unless it were proven."

    Keywords:

    burden of proof; complaint allowed; complaint allowed in part; disciplinary measure; hidden disciplinary measure;



  • Judgment 2861


    107th Session, 2009
    World Meteorological Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 83

    Extract:

    "A decision not to renew a contract is a discretionary decision that can be reviewed only on limited grounds. Those grounds include that the decision is tainted by procedural irregularities, is based on incorrect facts or essential facts have not been taken into consideration or clearly false conclusions have been drawn from the facts. The complainant argues that the decision of 25 October 2006 should be set aside on the ground that it is a disguised disciplinary measure. It is clear from the terms of the letter of 25 October 2006 [...] that that decision was taken on the basis of what was considered to be misconduct. So much is confirmed by the complainant's subsequent summary dismissal based on the warning of 25 October 2006 [...]. However, in Judgment 1405, the Tribunal stated that '[s]ince disciplinary proceedings are irrelevant to non-renewal of a fixed-term appointment the complainant may not properly allege hidden disciplinary action'. Even so, where nonrenewal is based on misconduct, that misconduct must be proved. And if the decision has not been preceded by disciplinary proceedings, the obligation of good faith requires that an organisation at least give the staff member concerned the opportunity to answer the matters levelled against him or her. Indeed, unless that opportunity is given, the organisation will be at risk of proceeding on incorrect facts or without regard to essential facts or of drawing false conclusions."

    Reference(s)

    ILOAT Judgment(s): 1405

    Keywords:

    complaint allowed; complaint allowed in part; decision; disciplinary measure; disciplinary procedure; evidence; good faith; hidden disciplinary measure; misconduct; non-renewal of contract; organisation's duties; remand;



  • Judgment 2854


    107th Session, 2009
    International Federation of Red Cross and Red Crescent Societies
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 18, 19 and 20

    Extract:

    The complainant asserts that the decision to terminate his contract is tainted with procedural irregularities and amounts to a disguised disciplinary measure.
    "In Judgment 2090 the Tribunal explained that the provisions of the Federation's Staff Regulations dealing with termination do not authorise the arbitrary termination of contracts and added, under 5, that 'there must be no breach of adversarial procedure [...] nor abuse of authority, nor obvious misappraisal of the facts'. The same applies to Article 11.4 of the Staff Regulations which deals with termination at will. Further, a decision taken pursuant to the latter must be taken in the interests of the Federation. Thus, a decision purportedly taken under Article 11.4 of the Staff Regulations in the interests of the Federation will be set aside if it constitutes a disguised disciplinary measure. A decision of that kind is not taken in the interest of the Federation but for the purpose of avoiding the procedural requirements that must be observed in the case of disciplinary measures.
    "The Tribunal identified a hidden sanction in Judgment 2659 as 'a measure which appears to be adopted in the interests of the Organization and in accordance with the applicable rules, but which in reality is a disciplinary measure imposed as a penalty for a transgression, whether real or imaginary'. The Tribunal also pointed out in that judgment that '[t]he true disciplinary nature of an administrative measure that constitutes a hidden sanction is not always apparent' and that, accordingly, it is 'necessary to examine the particular circumstances in each case'.
    "There are a number of matters in the present case that indicate that the decision to terminate the complainant's contract was a disciplinary measure. In this regard, the complainant was requested not to report to his office, his access to electronic files and to e-mail was terminated and he was allowed access to the Federation's building only to collect his personal belongings. Further, the letter of termination [...] referred to the complainant's refusal to accept the Secretary General's instructions and said that his 'defiance of [the Secretary General's] instructions [might] constitute grounds for termination for valid reasons with immediate effect'. The Secretary General had already stated in July 2006 that he considered the complainant had been guilty of misconduct [...] and had then warned him of the consequences of noncompliance with his formulation of principles [...]. Additionally, the Secretary General's letter [...] referred to the 'seriousness of [the] matter and the potential consequences it [might] entail'."

    Reference(s)

    ILOAT Judgment(s): 2090, 2659

    Keywords:

    complaint allowed; complaint allowed in part; definition; disciplinary measure; hidden disciplinary measure; judicial review; termination;

    Consideration 23

    Extract:

    The complainant asserts that the decision to terminate his contract is tainted with procedural irregularities and amounts to a disguised disciplinary measure.
    "In a case such as the present one where termination constitutes a hidden disciplinary sanction and reinstatement is not appropriate, compensation should be assessed on the basis of what would have occurred if proper procedures had been followed."

    Keywords:

    compensation; complaint allowed; complaint allowed in part; disciplinary measure; hidden disciplinary measure; judicial review; reinstatement; termination;



  • Judgment 2845


    107th Session, 2009
    Universal Postal Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 8

    Extract:

    According to Article 9.8, paragraph 2, of the UPU Staff Regulations, the Director General may, in the interest of the Union, extend the age limit in exceptional cases. The Tribunal considers that "the Director General's refusal to extend the complainant's service beyond the statutory age limit constitutes an act of retaliation [...]. The Director General used his discretionary authority for purposes other than those for which it was intended, thereby committing an abuse of authority. It follows that the impugned decision must be set aside."

    Reference(s)

    Organization rules reference: Article 9.8, paragraph 2, of the UPU Staff Regulations

    Keywords:

    age limit; amendment to the rules; career; complaint allowed; decision quashed; discretion; exception; executive head; extension; hidden disciplinary measure; misuse of authority; organisation's interest; purpose; refusal; staff regulations and rules;



  • Judgment 2659


    103rd Session, 2007
    United Nations Industrial Development Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 8

    Extract:

    "A hidden sanction is a measure which appears to be adopted in the interests of the Organization and in accordance with the applicable rules, but which in reality is a disciplinary measure imposed as a penalty for a transgression, whether real or imaginary. The true disciplinary nature of an administrative measure that constitutes a hidden sanction is not always apparent. It is therefore necessary to examine the particular circumstances in each case where there is an allegation that an administrative measure is a hidden sanction."

    Keywords:

    complaint allowed; complaint allowed in part; definition; disciplinary measure; enforcement; hidden disciplinary measure; judicial review; misconduct; organisation's interest; purpose; written rule;



  • Judgment 2540


    101st Session, 2006
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 27

    Extract:

    "The Tribunal is obliged to note that it is a most serious breach of the rights of international civil servants to take retaliatory action simply because they have pursued an internal appeal. International civil servants - no matter how high their rank is - cannot protect their rights in national tribunals. Their only recourse is through the mechanisms established by the relevant Staff Rules. To punish a person because he or she has had resort to those mechanisms is a gross abuse of power warranting an award of substantial exemplary damages".

    Keywords:

    amount; complaint allowed; complaint allowed in part; disciplinary measure; exemplary damages; hidden disciplinary measure; internal appeal; international civil servant; misuse of authority; municipal court; organisation's duties; right; right of appeal;



  • Judgment 2282


    96th Session, 2004
    International Atomic Energy Agency
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 11

    Extract:

    "The integrity of the internal appellate process is of fundamental importance to the proper functioning of the international civil service. Like the process before the Tribunal itself, it must be free of any taint of fraud or abuse of power. If mere delay in the completion of an internal appeal is enough to vitiate the process (see Judgments 2072 and 2197), how much more will that be the case where the process is corrupted at its very source by an attempt to keep staff members from exercising their legal rights. The Tribunal asserts unhesitatingly that intimidation or threats of reprisal in such circumstances will be severely sanctioned. Indeed, there is a positive obligation on the part of the administration of every international organisation to assist staff in the exercise of their recourse and to place no obstacle in their way."

    Reference(s)

    ILOAT Judgment(s): 2072, 2197

    Keywords:

    complaint allowed; delay; due process; hidden disciplinary measure; internal appeal; internal appeals body; lack of consent; misuse of authority; organisation's duties; procedural flaw; procedure; right; submissions;



  • Judgment 2232


    95th Session, 2003
    Organisation for the Prohibition of Chemical Weapons
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 16

    Extract:

    The complainant, who had been the Organisation's Director-General, impugns the decision to terminate his appointment. "In accordance with the established case law of all international administrative tribunals, the Tribunal reaffirms that the independence of international civil servants is an essential guarantee, not only for the civil servants themselves, but also for the proper functioning of international organisations. In the case of heads of organisations, that independence is protected, inter alia, by the fact that they are appointed for a limited term of office. To concede that the authority in which the power of appointment is vested - in this case the Conference of the States parties of the Organisation - may terminate that appointment in its unfettered discretion, would constitute an unacceptable violation of the principles on which international organisations' activities are founded [...], by rendering officials vulnerable to pressures and to political change. The possibility that a measure of the kind taken against the complainant may, exceptionally, be justified in cases of grave misconduct cannot be excluded, but such a measure, being punitive in nature, could only be taken in full compliance with the principle of due process, following a procedure enabling the individual concerned to defend his or her case effectively before an independent and impartial body."

    Keywords:

    adversarial proceedings; appointment; breach; case law; complaint allowed; condition; discretion; exception; executive body; executive head; fixed-term; general principle; hidden disciplinary measure; iloat; independence; internal appeals body; international civil servant; limits; member state; organisation; right to reply; safeguard; serious misconduct; termination; tribunal;



  • Judgment 1972


    89th Session, 2000
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 3 and 4

    Extract:

    The complainant, a director of a department, was made aware of two e-mails which were written in highly indecorous terms and, although private, commented on the running of the department. The Staff Union Committee protested against what it considered to be an invasion of privacy. The complainant did not respect the order to use discretion issued by the Director of Personnel. The Director-General, considering the complainant incapable in his function as Director of a department to maintain a stable and productive working environment, transferred him to a post of special advisor. "As the Tribunal held in Judgment 1018 [...], it is the duty of the head of any international organisation to take whatever measures can reduce tensions among his staff, and a transfer in the interests of the service may be an appropriate way of settling a conflictual situation. [...] However, since it cannot be regarded as disciplinary, the measure must, as the case law prescribes, heed the staff member's dignity and good name and not cause him undue suffering. Clearly, in this case the complainant was bound to view the measure as downgrading him. However, the fact that the organization was at pains to find him an assignment in keeping with his competence if not his wishes, to maintain his grade and to exercise the utmost discretion in dealing with the matter, shows that everything was done to protect his dignity as a senior official."

    Reference(s)

    ILOAT Judgment(s): 1018

    Keywords:

    conduct; discretion; downgrading; executive head; hidden disciplinary measure; organisation's interest; respect for dignity; transfer; working relations;



  • Judgment 1929


    88th Session, 2000
    Universal Postal Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 7

    Extract:

    "Compulsory transfer of a disciplinary nature must afford the staff member the safeguards available in the case of disciplinary sanctions, that is the right of the staff member to be heard before the sanction is ordered, with the option for him to participate in the full processing of the evidence and to make all his pleas. [...] It matters little in this respect whether or not transfer is envisaged among the disciplinary sanctions set out in the Staff Regulations. What is decisive is whether the transfer appears to be the consequence of the alleged professional shortcomings of the staff member which may, by their nature, give rise to disciplinary sanctions."

    Keywords:

    complaint allowed; complaint allowed in part; disciplinary measure; hidden disciplinary measure; organisation's duties; right to reply; safeguard; staff member's interest; staff regulations and rules; transfer;

    Consideration 9

    Extract:

    The complainant was transferred without prior notice and without an opportunity to be heard. "Taken together, the material circumstances give grounds for considering that the impugned transfer partly constituted a hidden disciplinary sanction. [...] The impugned decision must, therefore, be set aside and the procedure resumed from the point at which it was flawed [...]."

    Reference(s)

    Organization rules reference: ARTICLE 10 OF THE UPU STAFF REGULATIONS

    Keywords:

    case sent back to organisation; complaint allowed; complaint allowed in part; disciplinary measure; hidden disciplinary measure; organisation's duties; remand; right to reply; staff member's interest; staff regulations and rules; transfer;



  • Judgment 1590


    82nd Session, 1997
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 9

    Extract:

    The complainant contends "that it was improper of the Organisation to accuse him of unsatisfactory work without bringing disciplinary proceedings which would have afforded him safeguards; he was denied his right of reply and suffered a hidden disciplinary sanction. The Organisation has never accused the complainant of any sort of conduct warranting disciplinary action but merely of poor performance. So the change in his duties did not amount to a hidden disciplinary sanction".

    Keywords:

    assignment; conduct; disciplinary procedure; hidden disciplinary measure; misconduct; right to reply; unsatisfactory service; work appraisal;



  • Judgment 1496


    80th Session, 1996
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 8

    Extract:

    The Tribunal would allow a complaint against a decision to transfer an official "if it were a hidden disciplinary sanction because there are specific procedural rules to protect a staff member when disciplinary action is taken: see for example Judgments 126, under 4 and 9, 1078, under 16, and 1407, under 18. In processing, ordering and notifying transfer an organisation must heed the staff member's dignity and good name and not cause unnecessary hardship: see Judgments 367, under 13 and 14, 631, under 27 and 28, 942, under 4, and 1234, under 15 and 19. And the decision must follow a proper enquiry: see Judgment 942, under 4."

    Reference(s)

    ILOAT Judgment(s): 126, 367, 631, 942, 1078, 1234, 1407

    Keywords:

    case law; complaint allowed; decision quashed; due process; hidden disciplinary measure; inquiry; misuse of authority; moral injury; organisation's duties; respect for dignity; staff member's interest; transfer;



  • Judgment 1437


    79th Session, 1995
    World Intellectual Property Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 6

    Extract:

    The complainant was transferred against his wishes to another unit. Thereis no reason to regard his transfer as hidden disciplinary action or to attribute it to his staff union work, it having been taken in the organization's interests.

    Keywords:

    evidence; hidden disciplinary measure; judicial review; misuse of authority; organisation's interest; staff union activity; transfer;



  • Judgment 1407


    78th Session, 1995
    World Tourism Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 18

    Extract:

    The complainant says that her transfer amounted to a hidden disciplinary measure to get back at her because she asserted her right of appeal. "The Tribunal is satisfied that there was no question of disciplinary action": she herself applied for the transfer and it cost her no loss of pay or grade or responsibility. "Nor does she allege any loss of dignity in the duties she had to perform."

    Keywords:

    amendment to the rules; complaint allowed; complaint allowed in part; decision quashed; disciplinary measure; grade; hidden disciplinary measure; moral injury; right of appeal; salary; transfer;



  • Judgment 1405


    78th Session, 1995
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 6

    Extract:

    "Since disciplinary proceedings are irrelevant to non-renewal of a fixed term appointment, the complainant may not properly allege hidden disciplinary action."

    Keywords:

    contract; disciplinary measure; disciplinary procedure; fixed-term; hidden disciplinary measure; non-renewal of contract;



  • Judgment 1262


    75th Session, 1993
    European Southern Observatory
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Considerations 11 and 12

    Extract:

    The complainant objects to a decision not to extend his appointment. "The complainant was involved in the layout and design of the staff magazine, which, he says, was at times critical of the ESO. [...] The charge of victimisation, which is easy enough to make, has to be supported by serious evidence. The complainant has failed to discharge the burden that lies on him to prove the charge against the Observatory. For one thing, he was not even an official of the Staff Association. For another, his allegation that he was victimised merely because he helped with the publication of the magazine is unsupported by a shred of evidence."

    Keywords:

    burden of proof; contract; decision; evidence; fixed-term; freedom of speech; harassment; hidden disciplinary measure; non-renewal of contract; staff representative;



  • Judgment 809


    61st Session, 1987
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR

    Consideration 20

    Extract:

    "[the] posts and the grade they carried were such that the decision was tantamount to a sanction. an organisation is bound to show due regard to the dignity and good name of its staff".

    Keywords:

    assignment; complaint allowed; complaint allowed in part; downgrading; grade; hidden disciplinary measure; moral injury; organisation's duties; post; professional injury; respect for dignity; transfer;

    Considerations 17 and 20

    Extract:

    the complainant "was made to take special leave at full pay. the material provision is [unesco staff] rule 105.2(b): 'in exceptional circumstances staff members may be required to take special leave with pay, this measure being without prejudice to the rights of the staff member'. [...] the organization is not saying that no suitable post was vacant at the time the impugned decision was taken [...] nor does it maintain that it made the efforts it could have made to find a solution. all it does say is that the complainant never applied at the time for a single post. [...] on the broader issue, if the organization's intent was that the decision should be some sort of disciplinary sanction, then it would have perverted rule 105.2(b)".

    Reference(s)

    Organization rules reference: UNESCO STAFF RULE 105.2(B)

    Keywords:

    assignment; complaint allowed; complaint allowed in part; decision quashed; disciplinary measure; exception; hidden disciplinary measure; organisation's duties; special leave; staff member's duties; staff regulations and rules;

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Last updated: 12.08.2019 ^ top