Judgment No. 3927
1. The UPU shall pay the complainant 10,000 Swiss francs in moral damages.
2. It shall also pay the complainant 4,000 Swiss francs in costs.
3. All other claims are dismissed, as is the counterclaim for costs.
The complainant challenges the decision to suspend her without pay for three months for misconduct.
complaint allowed; disciplinary procedure; suspension
The complainant was provided with summaries of the interviews of Ms E. and Ms B., as well as her own, and was given ample opportunity to comment on them, of which she availed herself. The auditors found that, in substance, the alleged statements had in fact been made by the complainant, based solely on the three witness testimonies (of Ms B., Ms E. and the complainant). The auditors were tasked only with a fact-finding investigation, so they made no qualitative judgement on the complainant’s statements in question and merely limited themselves to verifying whether or not the incident had occurred. Considering this, and the fact that the complainant had a summarized version of each of the interviews, she had all the evidence on which the authority based its decision (see Judgment 3863, under 18).
ILOAT Judgment(s): 3863
confidential evidence; inquiry; adversarial proceedings; disciplinary procedure; procedural rights during investigation; investigation
[T]he Tribunal stresses that the UPU is mistaken in relying on “confidentiality”, as stated in Staff Rule 110.4, quoted above, as a reason to deny the complainant a copy of either the investigation report or the findings and recommendations of the Disciplinary Committee. Clearly, Staff Rule 110.4(3) can only be interpreted as meaning that the deliberations are confidential and that the consequent reports are not to be published or shared unless or until the documents are relied on in adversarial proceedings, including in steps leading to the imposition of a disciplinary measure. While in the present case, the complainant had much of the information needed to defend herself (as the investigation was confined to the three witness interviews, of which she had summary copies), the only way to properly ensure that a staff member has been fully informed of all the evidence and other elements of the case against her or him, on which the authority has based or intends to base its decision, is to supply her or him with the pertinent documents. The UPU failed to do so and, in the result, the complainant is entitled to moral damages which the Tribunal assesses at 10,000 Swiss francs.
confidential evidence; inquiry; adversarial proceedings; disciplinary procedure; investigation
The complainant asserts that the Director General was biased against her and that his decision to suspend her was vitiated by malice against her for her role as a staff representative. These allegations are unfounded. She has not provided any persuasive evidence to substantiate them, whereas the consistent case law of the Tribunal requires that such allegations be proved, since bias and bad faith cannot be presumed (see Judgments 3886, consideration 8, and 3738, consideration 9).
ILOAT Judgment(s): 3738, 3886
burden of proof; bias; bad faith
“The disciplinary authority within an international organisation has a discretion to choose the disciplinary measure imposed on an official for misconduct. However, its decision must always respect the principle of proportionality which applies in this area” (see Judgment 3640, under 29). [...] Regardless of the situation, the complainant’s statements (not directed at Ms B. specifically but still referring to work colleagues) were beyond what is appropriate for an international civil servant and the Tribunal notes that her behaviour immediately following the incident was not “pro-active”. The complainant had gone to speak with Ms B. for other work-related matters, and only after realizing that Ms B. was upset and after being told by her that she had filed a complaint did the complainant apologize. Therefore the Tribunal finds that, in this case, it was not disproportionate for the Director General to impose the disciplinary measure of a three-month suspension without pay. In all the circumstances, and notwithstanding the conclusion that there was a procedural flaw, it is inappropriate to set aside the impugned decision and remit the matter to the UPU.
ILOAT Judgment(s): 3640
proportionality; disciplinary procedure