Judgment No. 4227
The complaint is dismissed.
The complainant challenges the decision to dismiss him for misconduct.
termination of employment; misconduct; disciplinary procedure; complaint dismissed
The role of the Tribunal in a case such as the present, in relation to the question of whether the alleged conduct took place, was summarised in Judgment 3862, consideration 20. According to the well-settled case law of the Tribunal, the burden of proof rests on an organisation to prove allegations of misconduct beyond a reasonable doubt before a disciplinary sanction can be imposed (see, for example, Judgment 3649, consideration 14). 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 by the primary trier of fact” (see Judgment 2699, consideration 9).
ILOAT Judgment(s): 2699, 3649, 3862
burden of proof; misconduct; disciplinary measure; standard of proof; standard of proof in disciplinary procedure
The complainant argues in his brief that “the duration of the investigation process went far beyond a reasonable time to guarantee due process”. In its reply the defendant organization makes the point that the complainant does not specify how the duration of the investigation allegedly impacted upon his due process rights. The complainant does not, in his rejoinder, provide those particulars. It is by no means obvious that the time taken, which was lengthy, affected the complainant’s capacity to defend the charges or otherwise prejudiced his position. This contention should be rejected.
injury; inquiry; due process; delay in internal procedure; investigation
The second procedural ground raised by the complainant involves a contention that he was not provided with all evidence collected by OIGI in order to enable him to mount his defence. The defendant organization’s response in its reply is twofold. Insofar as the complainant’s grievance was that some of the documents (transcripts of interviews) he was given were redacted, the redacted information related to another investigation and was not at all relied upon in consideration of the charges against the complainant. In the circumstances of this case, there is no basis for the Tribunal to doubt this is correct. The second element of the response is that, to the extent that the complainant points to the fact that he was not given 11 transcripts of interviews until after the disciplinary measure of dismissal was imposed, the defendant organization says they were not relevant to the decision to dismiss him. The complainant had all relevant transcripts when pursuing his appeal to the WFP Executive Director and the FAO Appeals Committee and he did not then demonstrate, nor has he in these proceedings before the Tribunal, that those 11 transcripts were or even may have been relevant to the decision to dismiss him. Accordingly, this ground should be rejected.
disclosure of evidence; inquiry; due process; disciplinary procedure; investigation
The third ground is that not all those who should have been interviewed were in fact interviewed. The complainant identifies five such people. The defendant organization points to the fact that he did not proffer the names of these five people when asked towards the conclusion of his interview on 17 July 2014 whether there was anyone else the investigating officers should speak to and also says, correctly, the complainant has failed to demonstrate that the decision not to interview these five people flawed, in a material way, the investigation process.
inquiry; procedural rights during investigation; witness; investigation
The complainant seeks moral damages by reference to the time taken for the investigation process (over one and a half years) as well as the time taken to finalise the internal appeal process (over two and a half years). It may be accepted that both periods were extremely lengthy. However, the explicit basis for the damages is said to be “the enormous distress suffered by the complainant”. This is but an assertion not founded on any evidence of a causal connection and it is more likely that any distress suffered by the complainant over this time arose not because of the length of time the steps took but rather from the fact that the defendant organization was consistently satisfied at several levels of decision-making and review that the decision to dismiss the complainant for serious misconduct was justified.
injury; moral injury; inquiry; delay in internal procedure; investigation
The fourth of the complainant’s procedural grounds is that during the investigation and disciplinary process the allegations against him shifted. While the focus of the factual foundation of the charges varied during the entire process, the substance of the charges remained constant. This is not a case analogous to that arising in Judgment 4063.
ILOAT Judgment(s): 4063
procedural rights during investigation; notification of allegations