Judgment No. 4247
The complaint is dismissed.
The complainant challenges her dismissal from service for serious misconduct.
termination of employment; misconduct; complaint dismissed
In her complaint form, the complainant requested an oral hearing, identifying herself as a witness to be called regarding all claims raised in the complaint and, in particular, in relation to the material issues of fact contested by WIPO. The parties have presented ample submissions and documents to permit the Tribunal to reach an informed and just decision on the case. The request for an oral hearing is, therefore, rejected.
The complainant submits that the Administration failed to produce documents that she had requested during the course of the internal appeal and reiterates the request in the complaint. The complainant asks the Administration to provide her with a vast array of documents including “reports, correspondence, e-mails, notes, records, memoranda, letters, notices, file contents, minutes, or any other documents or items in the possession of the Administration that may in any way describe, comment on, relate or refer to, control, record, and/or evidence, in general or specifically, the investigation of the alleged conduct” and “the decision to terminate her.” Particularly given the breadth of this request, it can only be characterised as an impermissible “fishing expedition” and is rejected (see Judgment 4086, consideration 9).
ILOAT Judgment(s): 4086
disclosure of evidence
The complainant [...] requested a copy of the [...] report of alleged misconduct and the identity of the person who made this report. Before the Tribunal, the complainant focuses on the Administration’s refusal to disclose the identity of the reporter of the suspected misconduct and contends that this raises a presumption of prejudice and bias as does the refusal to disclose the requested documents. In the absence of compelling reasons justifying the disclosure of the identity of the reporter of suspected misconduct, this request is also rejected. As stated in the Internal Oversight Charter at Paragraph 15, reports of possible misconduct to the Director, IOD, shall be received on a confidential basis and may also be made anonymously. As well, the IOD’s Intranet site specifically provides that the reporting of suspected misconduct may be made confidentially or anonymously. Additionally, contrary to the complainant’s assertion, the identity of the reporter is entirely irrelevant in relation to the nature of the allegations of misconduct by the complainant.
confidential evidence; disclosure of evidence; whistle-blower
As to the complainant’s submissions concerning the proportionality of the decision to dismiss her, it must first be recalled, as stated in Judgment 3953, consideration 14, that:
“[A]ccording to a long line of precedent the decision-making authority has discretion in determining the severity of a sanction to be applied to a staff member whose misconduct has been established. However, as stated in Judgment 3640, under 29 and 31, that discretion must be exercised in observance of the rule of law, particularly the principle of proportionality.”
ILOAT Judgment(s): 3640, 3953
proportionality; disciplinary measure
The complainant is [...] of the view that the decision is flawed because [...] WIPO failed to prove her misconduct beyond a reasonable doubt. [...] In relation to the [...] point the complainant made, as stated in Judgment 3882, in consideration 14:
“It is settled principle that the organization must prove its case against a complainant in a disciplinary matter such as this beyond a reasonable doubt. The complainant argues that the [organization] did not meet that standard of proof in the present case. The Tribunal’s approach when this issue is raised was stated, for example, in consideration 14 of Judgment 3649, as follows:
‘At this juncture, 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’ (see Judgment 2699, consideration 9).”
However, at this juncture, it must also be noted that WIPO’s Staff Rule 10.1.2(d) expressly provides that the applicable standard of proof in disciplinary proceedings is “clear and convincing evidence”.
In the present case, based on a comprehensive investigation, IOD found that there was “clear and convincing evidence that [the complainant] was absent from work without a proper authorization 80 times between 1 October 2014 and 31 March 2015” and that, “[i]n each of [these] instances, [she] had misrepresented her presence at work through e-Work ‘omission to clock’ submissions”. The Tribunal has reviewed the IOD’s investigation report and the extensive evidence referenced in that report. The Tribunal agrees with IOD’s characterization of the evidence as being, at a minimum, “clear and convincing evidence” regarding the complainant’s conduct. It is clear that the facts underlying the charge of misconduct are uncontroverted. The reference by the Director General to the “clear and convincing evidence standard” does not detract from the fact that, in substance, the standard of beyond a reasonable doubt was met.
ILOAT Judgment(s): 2699, 3649, 3882
burden of proof; misconduct; disciplinary measure; disciplinary procedure; standard of proof
[T]he complainant submits that the decision to dismiss her amounts to unequal treatment, alleging that other officials who have committed fraud and other forms of misconduct were never sanctioned. This submission is rejected. Leaving aside the fact that she has not substantiated that those officials were similarly situated in fact and law, the Tribunal’s case law consistently holds that the principle of equal treatment cannot ordinarily be invoked to challenge a finding of misconduct (see, for example, Judgment 3575, consideration 5, and the case law cited therein).
ILOAT Judgment(s): 3575
equal treatment; misconduct
Consistant case law has it that a staff member is presumed to be aware of the organization's rules and regulations to which she or he is subject (see, for example, Judgment 2962, consideration 13).
ILOAT Judgment(s): 2962
duty to be informed; ignorance of the rules; duty to know the rules