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Judgment No. 3732

Decision

1. The impugned decision is set aside.
2. The case is sent back to the UPU for a new decision of the Director General, taken after recommendation by a new, properly composed JAC, in accordance with considerations 3 and 6.
3. The UPU shall pay the complainant moral damages in the amount of 6,000 euros.
4. It shall also pay him costs in the amount of 4,000 euros.
5. All other claims are dismissed, as is the UPU’s counterclaim for costs.

Summary

The complainant challenges the decision to dismiss his allegations of harassment and abuse of authority as unfounded.

Judgment keywords

Keywords

complaint allowed; decision quashed; case sent back to organisation; harassment

Consideration 1

Extract:

As the written submissions are sufficient to allow the Tribunal to render an informed decision, the Tribunal rejects the request for an oral hearing.

Keywords

oral proceedings

Consideration 2

Extract:

According to the Tribunal’s case law, “the right to an internal appeal is a safeguard which international civil servants enjoy in addition to their right of appeal to a judicial authority (see, for example, [...] Judgments 2781, under 15, and 3067, under 20). This is especially true since internal appeal bodies may normally allow an appeal on grounds of fairness or advisability, whereas the Tribunal must essentially give a ruling on points of law. [...] [T]he review of a disputed decision in an internal appeal procedure may well suffice to resolve a dispute, one of the main justifications for the mandatory nature of such a procedure is to enable the Tribunal, in the event that a complaint is ultimately lodged, to have before it the findings of fact, items of information or assessment resulting from the deliberations of appeal bodies, especially those whose membership includes representatives of both staff and management, as is often the case (see, for example, Judgments 1141, under 17, or 2811, under 11). [...] [T]he Appeal Board plays a fundamental role in the resolution of disputes, owing to the guarantees of objectivity derived from its composition, its extensive knowledge of the functioning of the organisation and the broad investigative powers granted to it. By conducting hearings and investigative measures, it gathers the evidence and testimonies that are necessary in order to establish the facts, as well as the data needed for an informed assessment thereof.” (See Judgment 3424, considerations 11(a) and (b).) Therefore, considering the administrative, quasi-judicial nature of the internal appeal, both parties (staff and Administration) must be in agreement in order to bypass the internal appeal procedure, which is a fundamental element of the conflict resolution system of an international organization, and come directly before the Tribunal.

Reference(s)

ILOAT Judgment(s): 1141, 2781, 2811, 3067, 3424

Keywords

waiver of internal appeal procedure

Consideration 3

Extract:

The Tribunal is of the opinion that the contested JAC member could not be a member of the JAC assessing the complainant’s appeal if he had been interviewed by the Internal Auditor, since the JAC had to assess the testimonies on which the Internal Auditor’s report was based. His impartiality may be open to question (see Judgment 2671, under 10) as there are reasonable grounds for concluding that there was an actual conflict of interest, not merely a perceived conflict (see Judgment 2225, under 19).

Reference(s)

ILOAT Judgment(s): 2225, 2671

Keywords

internal appeals body; impartiality; conflict of interest

Consideration 6

Extract:

In consideration 19 [of Judgment 3640] the Tribunal noted the established case law “according to which ‘a staff member must, as a general rule, have access to all evidence on which the authority bases (or intends to base) its decision against him’ and, ‘under normal circumstances, such evidence cannot be withheld [by this authority] on the grounds of confidentiality’ (see Judgment 2229, under 3(b), to which Judgment 3295, under 13, refers)”.
However, the Tribunal went on to observe in consideration 20 that: “[A]s is expressly indicated by the use of the terms ‘as a general rule’ and ‘under normal circumstances’ in the above excerpts of judgments, the case law in question does allow some exceptions to the principle which it establishes.”

Reference(s)

ILOAT Judgment(s): 2229, 3295, 3640

Keywords

confidential evidence; adversarial proceedings; right to be heard

Consideration 7

Extract:

The two flaws identified [...] warrant remitting the matter back to the UPU so that the competent authority may take a new decision upon recommendation of a new, properly composed [Joint Appeals Committee].

Keywords

case sent back to organisation

Consideration 6

Extract:

[T]he complainant insisted on the production of a full unredacted copy of the Internal Auditor’s report. But, as the Tribunal said in Judgment 3640, under 20:
“[I]n order to respect the rights of defence, it is sufficient for the official to have been informed precisely of the allegations made against her or him and of the content of testimony taken in the course of the investigation, in order that she or he may effectively challenge the probative value thereof (see
Judgment 2771, under 18).”

Reference(s)

ILOAT Judgment(s): 3640

Keywords

due process



 
Last updated: 15.09.2020 ^ top