Judgment No. 3138
Decision
1. The decision of 27 July 2010 is set aside.
2. The ITU shall pay the complainant compensation for moral injury in the amount of 12,000 Swiss francs.
3. It shall also pay her the amount of 2,000 francs in costs.
4. All other claims in both complaints are dismissed.
Consideration 5
Extract:
As both complaints concern the events surrounding the decision to suspend the complainant from duty, it is appropriate that they be joined to form the subject of a single judgment.
Keywords
joinder
Consideration 7
Extract:
It must [...] be recalled that under Article II, paragraph 5, of its Statute, which defines its jurisdiction, the Tribunal is competent to hear complaints alleging non-observance, in substance or in form, of the terms of employment of officials and of the provisions of the Staff Regulations applicable to a particular case. On that basis, it develops its own case law which takes account of the fundamental rights enjoyed by civil servants and the general principles of the international civil service. On the other hand, it is in no way bound by the case law of other international courts, or by that of the courts of the European Communities, to which the complainant refers extensively in her submissions.
Keywords
applicable law; case law of other tribunals
Consideration 8
Extract:
The suspension of an official, even if it is only an interim measure, is liable to undermine the esteem in which that person is held within the employing organisation or, at least, within the service to which he or she is assigned. In these circumstances, having to face other people and being suddenly plunged into precarious inactivity can generate acute stress which might have repercussions on the person’s health, depending on his or her sensitivity and constitution. Even if suspension is not necessarily followed by a substantive decision to impose a disciplinary sanction, it is plainly a decision adversely affecting the person concerned which 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 (see Judgment 2698, under 9).
Reference(s)
ILOAT Judgment(s): 2698
Keywords
misconduct; suspension
Consideration 10
Extract:
Suspension is an interim precautionary measure which, in principle, must be adopted urgently, and this will often make it impossible to invite the person concerned to express their opinion beforehand. However, this person’s right to be heard must be exercised before the substantive decision is taken to impose a disciplinary sanction (see Judgment 2365, under 4(a)).
Reference(s)
ILOAT Judgment(s): 2635
Keywords
due process; suspension; right to be heard
Consideration 10
Extract:
It is certainly regrettable that the complainant’s professional mailbox was consulted in her absence. However, the evidence in the file shows that she was informed that such a technical check was imminent and – naturally – it had to be carried out urgently.
Keywords
evidence; due process; email
Consideration 14
Extract:
Irrespective of the question of whether the duration of the complainant’s suspension was reasonable, it must be found that the Union breached its duty of care towards her by leaving her in a state of uncertainty […] as to the possible adoption of a disciplinary measure and by not informing her of the solutions it was considering for her professional future, particularly since the decision […] extending her contract “as an interim precautionary measure” was hardly likely to reassure her. This breach of the duty of care caused the complainant moral injury, especially as the ITU itself underscores her psychological frailness.
Keywords
moral injury; duty of care
Consideration 16
Extract:
The complainant asks the Tribunal to rule that, if the sums awarded were to be subject to national taxation, she would be entitled to claim a refund of the tax paid from the ITU. In the absence of a present cause of action in this regard, this claim must be dismissed.
Keywords
cause of action; national taxation of the tribunal's award
Judgment keywords
Keywords
complaint allowed; decision quashed; misconduct; suspension
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