Judgment No. 2365
Both the complaint and the UPU's counterclaim are dismissed.
"The suspension of the complainant was an interim, precautionary measure, which was to last as long as the disciplinary procedure. It was ordered without hearing the complainant's views on the matter beforehand, but the latter's right to be heard was safeguarded since he later had an opportunity to exercise it before the impugned decision was taken. In any case, a decision to suspend need not necessarily be followed by a substantive decision to impose a disciplinary sanction (see Judgment 1927, under 5). Nevertheless, since it imposes a constraint on the staff member, suspension must be legally founded, justified by the requirements of the organisation and in accordance with the principle of proportionality. A measure of suspension will not be ordered except in cases of serious misconduct. Such a decision lies at the discretion of the Director-General. It is subject therefore to only limited review by the Tribunal, that is to say, if it was taken without authority or in breach of a rule of form or of procedure, or was based on an error of fact or of law, or overlooked some essential fact, or was tainted with abuse of authority, or if a clearly mistaken conclusion was drawn from the evidence (see, for instance, Judgment 2262, under 2)."
ILOAT Judgment(s): 1927, 2262
decision; formal requirements; measure of distraint; provisional measures; right to reply; organisation's duties; proportionality; breach; suspensive action; period; disciplinary measure; disciplinary procedure; judicial review; decision-maker; discretion; executive head; limits; disregard of essential fact; formal flaw; procedural flaw; mistake of fact; mistaken conclusion; misuse of authority; condition; official; abuse of power
[The complainant] has misunderstood the internal nature of the investigative report. Since the latter was requested and produced as part of an internal audit, it cannot on its own serve as conclusive evidence against a staff member. On the other hand, it may yield indications of irregularities justifying the initiation of a disciplinary procedure, in the course of which the person charged must be allowed all admissible means of defence. The Director-General did not abuse his discretionary authority by considering that the investigative report contained indications which merited further scrutiny in the context of a disciplinary procedure, even on the assumption that he had been unable to study the report in full himself.
inquiry; investigation; investigation report; disciplinary charges