Judgment No. 4043
1. The decisions of the President of 15 January 2016 and 10 June 2016 to dismiss the complainant and affirm his dismissal are set aside.
2. The EPO shall reinstate the complainant to the position he held immediately before his dismissal with all legal consequences. Any earnings from professional employment during the period between 15 January 2016 and the date of his reinstatement shall be deducted from the amounts due.
3. The EPO shall pay interest on the resulting remuneration arrears at the rate of 5 per cent per annum from due dates until the date of payment.
4. The EPO shall pay the complainant moral damages in the sum of 30,000 euros.
5. The EPO shall pay the complainant costs in the sum of 8,000 euros.
6. All other claims are dismissed.
The complainant challenges the decision to dismiss him for misconduct.
complaint allowed; decision quashed; termination of employment; misconduct; staff representative
Ordinarily an international organisation would have no legitimate interest in the lawfulness or otherwise of an agreement between a staff association and its members. As the Tribunal said in Judgment 3106, consideration 7, the principle of freedom of association “precludes interference by an organisation in the affairs of its staff union or the organs of its staff union (see Judgment 2100, under 15). A staff union must be free to conduct its own affairs, to regulate its own activities and, also, to regulate the conduct of its members in relation to those affairs and activities.” This is all the more so if the agreement concerns the funding of legal advice in the pursuit by staff members of grievances against the international organisation. Whether the agreement was lawful or not would be a matter for the parties to the agreement, namely the staff association and the member concerned. The question of lawfulness would only arise if the legal efficacy of the agreement was contested by one of the parties. There is nothing to suggest that either the complainant or Mr C. had any reservations about the legality of the agreement when it was signed and plainly Mr C. was to derive a benefit under it. Moreover, as a matter of principle, there is nothing untoward about a staff association providing funding to a member of the association employed by an international organisation to obtain legal assistance to pursue a grievance against the organisation.
ILOAT Judgment(s): 2100, 3106
freedom of association
The preceding analysis should not be viewed as tacit acceptance by the Tribunal that litigation by members of staff against the organisation that employs them is desirable or should be promoted. If grievances can be resolved other than by litigation involving lawyers, that is very much to be preferred (see, for example, the observations of the Tribunal in Judgment 3900, consideration 11, and the cases referred to therein).
ILOAT Judgment(s): 3900
settlement out of court
[T]he complainant was entitled to share the letter with others in SUEPO, as a general critique of the lawfulness of the general agreement. It is well settled that staff representatives must enjoy a broad freedom of speech (Judgment 3156, consideration 12) and it was not unlawful for the complainant, in the circumstances of this case, to disseminate the letter [...] as he admitted doing.
ILOAT Judgment(s): 3156
freedom of speech; freedom of association; staff representative
As a general proposition, a provision of a staff rule or regulation founding a charge of misconduct should not be widely or liberally construed so as to capture conduct potentially at the very margins of the conduct proscribed by the rule or regulation. It should be construed only to capture conduct clearly within the boundaries of the rule or regulation.
The complainant sought an oral hearing but the Tribunal is satisfied that it can fairly and appropriately determine the case on the written material provided by the parties.
For the foregoing reasons no disciplinary sanction should have been imposed on the complainant including the sanction of dismissal. The decisions of the President of 15 January 2016 and 10 June 2016 to dismiss the complainant and affirm his dismissal will be set aside. An order will be made reinstating the complainant with all legal consequences. The complainant must give credit for any earnings from professional employment during the period between 15 January 2016 and the date of his reinstatement, which shall be deducted from the amounts due. Interest will accrue at the rate of 5 per cent per annum on the resulting remuneration arrears from due dates until the date of payment. The complainant is entitled to moral damages and an order for costs [...]. Exemplary damages, as sought by the complainant, are not warranted.
reinstatement; exemplary damages