Judgment No. 4106
Decision
The complaint is dismissed.
Summary
The complainant contests the decision to apply to him the sanction of discharge.
Judgment keywords
Keywords
termination of employment; misconduct; complaint dismissed
Consideration 9
Extract:
[T]he requirement spelled out in the Tribunal’s case law that “an investigation be conducted in a manner designed to ascertain all relevant facts without compromising the good name of the employee and that the employee be given an opportunity to test the evidence put against him or her and to answer the charge made” (see Judgments 2475, under 7, 2771, under 15, 3200, under 10, 3315, under 6, 3682, under 13, 3872, under 6, and 3875, under 3) was respected in the present case. At the outset, it is observed that there is no obligation to inform a staff member that an investigation into certain allegations will be undertaken (see Judgment 2605, under 11). The evidence shows that the complainant was informed at the outset of the investigation interview that the interview related to allegations of misconduct and that he was given the opportunity to weigh the evidence presented, respond to the allegations, and to provide any evidence or name any witnesses to support his responses. He was also given the opportunity to submit any further evidence or information in his defence prior to the conclusion of the investigation. There is no principle in the Tribunal’s case law which supports the complainant’s claim that he should have received detailed information about the allegations prior to the investigation interview.
Reference(s)
ILOAT Judgment(s): 2475, 2605, 2771, 3200, 3315, 3682, 3872, 3875
Keywords
inquiry; right to reply; due process; disciplinary procedure; right to be heard; investigation; duty to inform about the investigation
Consideration 12
Extract:
As the Tribunal stated in Judgment 3872, under 2, “[c]onsistent precedent has it that decisions which are made in disciplinary cases are within the discretionary authority of the executive head of an international organization and are subject to limited review. The Tribunal will interfere only if the decision is tainted by a procedural or substantive flaw (see Judgment 3297, under 8). Moreover, where there is an investigation by an investigative body in disciplinary proceedings, the Tribunal’s role is not to reweigh the evidence collected by it, as reserve must be exercised before calling into question the findings of such a body and reviewing its assessment of the evidence. The Tribunal will interfere only in the case of manifest error (see Judgment 3757, under 6)”.
Reference(s)
ILOAT Judgment(s): 3297, 3757, 3872
Keywords
evidence; disciplinary procedure; judicial review; manifest error
Consideration 11
Extract:
The complainant claims that the ILO failed to prove the misconduct beyond a reasonable doubt, because it did not verify the exact amount of money received by him nor did it establish how his actions “undermined the ILO’s strategy”. This claim is unfounded. As the Tribunal said in Judgment 3649, under 14, “it is useful to reiterate the well settled case law that the burden of proof rests on an organization to prove the allegations of misconduct beyond a reasonable doubt before a disciplinary sanction is imposed. It is equally well settled that the ‘Tribunal will not engage in a determination as to whether the burden of proof has been met, instead, the Tribunal will review the evidence to determine whether a finding of guilt beyond a reasonable doubt could properly have been made’.”
The allegations against the complainant were set out in the Investigation Report as follows:
(a) “It is alleged that [the complainant] was [the business development advisor of an EU Grant Scheme project for a Bangladeshi agro-processors’ association] and a member of three other committees of [said association], and that he received a very high fee for developing a project proposal to obtain [for the association] an EU grant.
(b) [the complainant] is also alleged to have submitted two project proposals to [said association] whereby he would be paid for acting as a master trainer.
(c) It is further alleged that [the complainant] was involved in forging the signature of the Director of CO-Dhaka [...].”
The IAO investigation found that the first two allegations (as listed above) were substantiated by the evidence compiled as well as by the complainant’s free admission of guilt. The third allegation was not substantiated and was not raised again in any further proceedings. The Tribunal finds no flaw in the evaluation of the evidence by the Director-General in reaching the conclusion that the burden of proof was met. The complainant’s assertion that the exact amount of money paid was unverified does not negate the fact that he did receive payments for outside activities without authorization from the ILO. The complainant claims the assessment of his unauthorized outside activities being contrary to the ILO’s strategy was false and based solely on a statement made by the Chief Technical Adviser who “was new and had limited knowledge of the TVET project”. The Tribunal notes that the Director-General agreed with the Chief Technical Adviser’s assessment noting that the proposals prepared by the complainant and submitted to the EU on behalf of the agro-processors’ association contradicted ILO policy in the particular field. The Tribunal also notes the Director-General’s conclusion that the complainant’s unauthorized outside activities were in a direct conflict of interest with his position as an ILO National Programme Officer, and that he is the proper authority for deciding what could potentially be considered harmful to the ILO’s interests and/or reputation.
Keywords
burden of proof; standard of proof; standard of proof in disciplinary procedure
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