Judgment No. 4455
The complaint is dismissed.
The complainant challenges the decision to suspend her pending disciplinary proceedings.
disciplinary procedure; suspension; complaint dismissed
The complainant requests an oral hearing under Article 12, paragraph 1, of the Tribunal’s Rules. The Tribunal however notes that the parties have presented ample submissions and documents to permit the Tribunal to reach an informed decision on the case. The request for an oral hearing is therefore refused.
The power to suspend is enlivened when the Secretary-General considers, in the specified circumstances, that continuation in service of the official may prejudice the service. The power is founded on the opinion of the Secretary-General on the question of prejudice.
When the complainant was suspended with pay by memorandum dated 4 May 2018, the approach of the Secretary-General was, on its face, orthodox and in conformity with Staff Rule 29. First the Secretary-General said that a sanction was being considered and identified it as summary dismissal. Secondly the Secretary-General addressed the question of prejudice and gave a rational, albeit brief, explanation why the interests of the service may be prejudiced if the complainant continued in service.
The grounds for reviewing the exercise of the discretionary power to suspend are limited to questions of whether the decision was taken without authority, in breach of a rule of form or procedure, was based on an error of fact or law, involved an essential fact being overlooked or constituted an abuse of authority (see, for example, Judgment 2365, consideration 4(a)).
ILOAT Judgment(s): 2365
suspension; discretion; role of the tribunal
[T]here is an anterior issue, namely whether the complainant was provided with adequate reasons for the decision to suspend her with pay bearing in mind that suspension is a matter of some gravity (see Judgment 3496, consideration 2). As noted earlier, one relevant question arising under Staff Rule 29(1) for which reasons should be provided at least in case such as the present, is why the decision-maker (the Secretary-General) concluded that continuation in service of the official may prejudice the service. Ordinarily the other question arising under Staff Rule 29(1), whether it is a case that appears to call for a sanction, can readily be answered by reference to the actual or pending charges and the then known or alleged facts. Generally, the source of those reasons can be a document other than the document communicating the decision and indeed can be what an official is told at a meeting (see, for example, Judgment 4037, consideration 7, and Judgment 3914, consideration 15).
ILOAT Judgment(s): 3496, 3914, 4037
There is no general legal obligation on an organisation to give a member of staff an opportunity to contest a prospective decision to suspend her or him. Thus, there was no flawed procedure.
due process; suspension; procedural flaw