Judgment No. 2879
1. The Director General's decision of 28 November 2008 as well as his earlier decisions of 15 October and 12 November 2007 are set aside.
2. WIPO shall pay the complainant moral damages in the amount of 40,000 Swiss francs.
3. It shall within seven days of the delivery of this judgment remove all documents and references to the disciplinary proceedings from the complainant's file.
4. The Organization shall within seven days of the delivery of this judgment send an e-mail to all staff stating that, with reference to its e-mail of 15 November 2007 concerning the staff member who had been found responsible for the publication of the article in Le Matin Dimanche of 3 December 2006, that staff member has been cleared of any wrongdoing and that the disciplinary sanctions have been lifted.
5. WIPO shall pay the complainant costs in the amount of 10,000 francs.
6. All other claims are dismissed.
The complainant was charged with misconduct in relation to the publication of an article which reflected badly on WIPO, WIPO's Director General and her former supervisors. Disciplinary sanctions were imposed on her, including relegation and a ban on promotion for a consecutive period of three years. She challenged the imposition of sanctions, denying any responsibility for the publication of the article and arguing that they were tailored to specifically delay her promotion, which the Tribunal had ordered in Judgment 2706. The Tribunal found that the evidence fell far short of establishing the complainant's responsibility.
"The determinative issue in this complaint centres on the finding that the complainant was responsible for the publication of the article. It is well established that the individual accused of wrongdoing is presumed to be innocent. It is equally well established that the accuser bears the burden of proof. WIPO does not deny that it bears the burden of proof but submits that the standard of proof is "precise and concurring presumptions". The Tribunal does not accept this submission. In Judgment 2786, under 9, it held that in the case of misconduct the standard of proof is beyond a reasonable doubt."
ILOAT Judgment(s): 2786
liability; evidence; burden of proof; presumption of innocence; benefit of doubt; misconduct; bias
"[I]t is not the Tribunal's role to engage in fact-finding and to make a determination on the question of culpability. Instead, the Tribunal's role is to assess whether the decision taken by the Director General is well founded."
tribunal; judicial review; limits
"The Tribunal concludes that the Joint Advisory Committee's finding, in turn endorsed by the Director General, namely that the complainant was responsible for the publication of the article, was tainted by the failure to consider the evidence against the correct standard of proof, by error of law, and by the drawing of adverse inferences which were not supported by the facts. Accordingly, the impugned decision must be set aside."
decision; liability; appraisal of evidence; judicial review
"[A]n e-mail was sent to all WIPO staff regarding the article that had appeared in the newspaper. The e-mail stated that the allegations in the press had proven to be false. It also stated that in light of the seriousness of the breach of the Staff Regulations and Staff Rules and the Standards of Conduct for the International Civil Service sanctions were applied to the staff member concerned. Even though the complainant was not named, her alleged connection with the article was well known to many staff members. This constituted a violation of her privacy and was an affront to her dignity."
Organization rules reference: WIPO Staff regulations and Staff Rules; Standards of Conduct for the International Civil Service
respect for dignity; disciplinary measure
The Tribunal observes that at no time throughout the various proceedings was there a finding that the complainant herself was the source of the article. As already indicated, in its report [...] the Joint Advisory Committee identified two key considerations that led to its conclusion that the complainant was responsible. As to the first consideration and the reliance on the power of attorney, it must be observed that the power of attorney only authorised and was limited to the taking of lawful actions and has to be understood in the light of the professional duties promulgated by the Rules and Customs of the Geneva Bar Association. If in fact Mr A. was the journalist’s source, that was clearly contrary to his professional duty and beyond the scope of the authority granted in the power of attorney. Consequently, the finding that the granting of a power of attorney made the complainant responsible for the article is an error of law.
power of attorney