Judgment No. 1878
1. The impugned decision is set aside.
2. The Organization shall provide the relief set out in consideration 33.
3. The Organization shall pay her 10,000 United States dollars in damages for moral injury.
4. It shall pay her 4,000 dollars in costs.
5. All her other claims are dismissed.
The complainant called her supervisor a fascist while giving the nazi salute. She was dismissed summarily. "In the Tribunal's view, while the complainant's conduct was not such as to be expected from an international civil servant, nevertheless it was not so serious as to warrant summary dismissal. Her words were intemperate, spoken in the heat of the moment to a superior. That is unacceptable. There was an insulting gesture used twice which was particularly hurtful to [her supervisor], a German. Again, that is unacceptable. But on the other hand an apology was offered the same evening and again the next morning and a written acceptance was generously given by [the supervisor]. In the opinion of the Tribunal qualifying the incident as serious misconduct justifying summary dismissal would be a clearly mistaken conclusion to draw from the facts. Therefore, the disciplinary measure imposed was so disproportionate as to amount to a mistake of law."
proportionality; termination of employment; serious misconduct; staff member's duties; conduct; fitness for international civil service; supervisor; working relations; disciplinary measure; summary dismissal; mistaken conclusion
"It is not acceptable that the organization, in defending this complaint, disclaims all responsibility for any alleged shortcomings of the Appeals Board."
procedure before the tribunal; liability; internal appeals body; internal appeal; reply; organisation's duties; flaw; procedural flaw
complaint allowed; decision quashed; proportionality; reinstatement; disciplinary measure; summary dismissal
The complainant [...] submits that lack of proportionality is an error of law: see Judgments 203 [...], 1070 [...] and 1271 [...]. According to the Tribunal's jurisprudence, a sanction out of porportion to the subjective and objective nature of the offence is a mistake of law and since the decision is flawed it must be quashed. The complainant refers to cases where the material or moral interests of an international organisation were jeopardised and the Tribunal confirmed decisions of summary dismissal for serious misconduct: see Judgments 63 [...], 159 [...] and 969 [...]. Insulting a colleague in the privacy of his office and then offering apologies that evening and the next morning, which were accepted in writing, does not constitute serious misconduct. Her actions did not jeopardise the material or moral interests of the Organization.
ILOAT Judgment(s): 63, 159, 203, 969, 1070, 1271
proportionality; serious misconduct; mistake of law