Judgment No. 4063
1. The impugned decision of 2 August 2016, the termination decision of 1 February 2012 and that of 23 May 2012 are set aside.
2. UNESCO shall pay the complainant material damages calculated as indicated in consideration 12 of the judgment.
3. It shall also pay him moral damages in the total amount of 16,000 euros.
4. Lastly, it shall pay him costs in the amount of 5,000 euros.
5. All other claims are dismissed.
The complainant challenges the decision to terminate his appointment on disciplinary grounds.
complaint allowed; decision quashed; termination of employment; misconduct
[I]n accordance with Article 8(2)(b) of the Rules of the Tribunal, a defendant organization before the Tribunal is only required to provide a translation into the language chosen for the proceedings by the complainant for “any text which is not in English or French”. Given that, in this case, the documents in question are drafted in English, UNESCO did not have to provide a French version thereof. In addition, the fact that excerpts from applicable texts and case law were cited in English in the defendant Organization’s submissions does not warrant these items being disregarded. It follows that this plea must be rejected.
[W]hile the Appeals Board did express an opinion on the complainant’s pleas concerning [...], it did not, however, mention the many other pleas of a procedural nature raised by the complainant. [...] Thus, the Appeals Board did not examine all of the complainant’s pleas. In addition, the Director-General did not address those pleas in her decision of 2 August 2016 either. Accordingly, the right of the complainant to an effective internal appeal was denied. The decision impugned is thus unlawful, which justifies it being set aside.
internal appeals body; internal appeal; right of appeal; impugned decision
[T]he Tribunal cannot be affirmatively satisfied that the decision of the Director-General would have been the same had she only considered the charges specifically presented as such in the list of charges referred to the JDC. The termination decision, which was taken unlawfully, must therefore be set aside for this reason.
termination of employment; disciplinary measure
The complainant asks to be reinstated in the Organization. However, according the Tribunal’s case law, the reinstatement of an official on a fixed-term contract is ordered only in exceptional cases (see Judgment 3417, consideration 9). The Tribunal does not consider this case to be exceptional and will not order the reinstatement of the complainant.
ILOAT Judgment(s): 3417
The Tribunal recalls its consistent case law according to which a staff member is entitled to an efficient internal means of redress and to expect a decision on an internal appeal to be taken within a reasonable time (see Judgment 3336, consideration 6). In this case, the complainant submitted his detailed appeal to the Appeals Board on 11 March 2015 – following the public delivery of Judgment 3398 – and the decision of the Director-General on this appeal was issued only on 2 August 2016, that is almost seventeen months later.
Given the nature of the case, which concerns a termination for disciplinary reasons, the Tribunal considers that such a period of time was excessive and that, in this regard, moral damages should be awarded to the complainant in the amount of 1,000 euros.
ILOAT Judgment(s): 3336
moral injury; disciplinary measure; delay in internal procedure
The complainant’s counsel has asked the Tribunal to order the Organization to make a deduction in his favour from the pecuniary awards granted to the complainant. But it is not the Tribunal’s role to interfere in the private relations between a complainant and his counsel. That request shall therefore be dismissed.
competence of tribunal; counsel