Judgment No. 2741
The complaint is dismissed.
misconduct; hacking; complaint dismissed
The complainant asserts that he was deliberately excluded from the decisive initial phase of the investigation, which made it impossible for him to prevent any tampering with the equipment seized in his office. He argues that because the search of his computer equipment was carried out in secrecy, his “worker’s dignity” and his right to privacy were unjustifiably violated which, in his view, renders the evidence thus gathered inadmissible. […] Any worker has the right to be protected against arbitrary or unlawful interference by an employer in his or her private life or correspondence. Any interference in a worker’s private life ordered exceptionally by an employer to safeguard the normal and secure functioning of a company’s information technology system must be undertaken in the presence of the worker or his or her representatives. If that is not possible owing to the urgency of the situation, all reasonable precautions should be taken to ensure that the accessing of the worker’s personal files remains within the bounds of what is required for company security, that any unjustified disclosure or dissemination of personal information is avoided and that any tampering with the computer equipment is prevented. In addition, the person concerned must be informed without delay of the investigations conducted and given all reasonable means to assert his or her rights. These basic principles are applicable to employment relations within international organisations.
inquiry; right to privacy; procedural rights during investigation; investigation
A disciplinary penalty can be imposed only at the close of an adversarial procedure that fully guarantees the presumption of innocence and the staff member’s right to be heard. The facts complained of must be clearly stated and notified in good time so that the staff member can participate actively and fully in the taking of evidence both before the body responsible for conducting the investigation and before the advisory disciplinary body and the decision-making authority. These bodies must scrupulously avoid taking evidence from one party without the other’s knowledge, whether or not the evidence is prejudicial to the staff member (see Judgments 1133, 1212, 2254, under 6, and 2475, under 20).
ILOAT Judgment(s): 1133, 1212, 2254, 2475
adversarial proceedings; procedural rights during investigation; due process in disciplinary procedure
The decision-making authority cannot disregard the opinions or recommendations it receives from advisory bodies without good reason (see Judgment 2092, under 10). Otherwise, advisory procedures would be meaningless and serve no purpose. However, such opinions or recommendations do not bind the decision-making authority to the extent of barring it from undertaking an impartial assessment of the merits of the proposals made and curtailing its obligation to examine carefully, in particular, whether the findings of fact that they contain are correct. Nevertheless, where a decision-making authority intends to disregard the recommendations of advisory bodies, it must state clearly in its decision the objective grounds that led it to opt for a divergent conclusion. In the case of a disciplinary procedure, this clearly applies not only to the appraisal of the evidence gathered but also, on the one hand, to the decision whether or not to order a penalty and, on the other, to the severity of the penalty, which should respect the principle of proportionality.
ILOAT Judgment(s): 2092
proportionality; disciplinary measure; final decision; motivation
When the Tribunal is seised of a complaint against a disciplinary penalty, it must quash the penalty if it is based on an error of fact or of law, overlooked some essential fact, was tainted with abuse of authority, or if a clearly mistaken conclusion was drawn from the evidence (see Judgments 2262, under 2, and 2365, under 4(a) in fine).
ILOAT Judgment(s): 2262, 2365
disciplinary measure; summary dismissal; discretion; mistake of law