Judgment No. 3137
Decision
1. The Director-General’s decision of 6 January 2010 is set aside.
2. WHO shall pay the complainant material damages in an amount equivalent to the salary and other benefits that he would have received from 10 November 2007 to 9 November 2008 had his contract not been terminated.
3. It shall also pay him moral damages in the amount of 15,000 United States dollars and costs in the amount of 10,000 dollars.
4. The Organization is entitled to deduct the amount of 43,222 dollars already paid to the complainant.
5. All other claims are dismissed.
Judgment keywords
Keywords
complaint allowed; decision quashed; termination of employment; misconduct; disciplinary procedure
Consideration 6
Extract:
A staff member is entitled to due process before a disciplinary sanction is imposed. In this regard, he or she must be given, at the very least, an opportunity to test the evidence on which the charges are based, to give his own account of the facts, to put an argument that the conduct in question does not amount to misconduct and that, even if it does, it should not attract the proposed sanction (see Judgments 2254, consideration 6, and 2475, consideration 22). The complainant was given an opportunity to reply to the OIOS report but, beyond that, it is not clear that the requirements of due process were observed. However, it is clear that he had no opportunity to test the evidence of others interviewed by the OIOS or any other evidence that was used against him. This was a serious breach of due process upon which the complainant was entitled to rely in his internal appeals, without seeking a hearing in which to give evidence or to test the evidence of others.
Reference(s)
ILOAT Judgment(s): 2254, 2475
Keywords
due process; disciplinary procedure
Consideration 6
Extract:
[I]t was for the Organization to establish misconduct beyond reasonable doubt and, this being a dismissal case, the complainant was entitled to the benefit of the doubt (see Judgment 2786, consideration 9). However, the burden of proof was effectively reversed when he was dismissed.
Reference(s)
ILOAT Judgment(s): 2786
Keywords
burden of proof; termination of employment; standard of proof
Consideration 8
Extract:
[T]he time that has now elapsed makes it impractical to order the complainant’s reinstatement. However, he is entitled to material damages that take account of what would have happened had he not been dismissed. In this regard, the complainant contends that his contract was extended for a further period of two years on 31 July 2007. Although there was a recommendation to that effect, the evidence indicates, as claimed by WHO, that it was only renewed until 9 November 2007. Had the matter been properly considered at that time, it may well have resulted in a finding of negligence, but not of misconduct. In these circumstances, it is likely that his contract would only have been extended until 31 July 2008 but with a prospect of further extension if his performance proved satisfactory in that period. Given that his previous performance had been rated highly, there was a good chance that it would be satisfactory and his contract then renewed. That being so, the complainant lost not only the salary and benefits he would have received until 31 July 2008, but also a valuable chance that his contract would then have been further extended. In the circumstances he is entitled to material damages equivalent to one year’s salary and other benefits from 10 November 2007 to 9 November 2008 had his contract not been terminated.
Keywords
reinstatement; material damages
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