Judgment No. 4515
1. The impugned decision is set aside to the extent stated in considerations 9 and 10 of this judgment. The decisions of 13 November 2020 and 16 November 2020 are also set aside.
2. ITU shall pay the complainant material damages as stated in consideration 9 of this judgment.
3. ITU shall pay the complainant interest as stated in consideration 10 of this judgment.
4. ITU shall pay the complainant moral damages in the amount of 15,000 Swiss francs.
5. ITU shall pay the complainant costs in the amount of 8,000 Swiss francs.
6. All other claims are dismissed.
The complainant challenges the conversion of his suspension with pay into a suspension without pay pending an investigation for harassment undertaken against him.
complaint allowed; patere legem; suspension without pay
The power to suspend a staff member under Staff Rule 10.1.3 is within the discretion of the Secretary-General. 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, Judgments 2365, consideration 4(a), 2698, consideration 9, 3037, consideration 9, and 4452, consideration 7). According to the Tribunal’s case law, the suspension of an official is a provisional measure which in no way prejudges the decision on the substance of any disciplinary measure against him (see Judgments 1927, consideration 5, and 2365, consideration 4(a)). However, as a restrictive measure on the staff member concerned, the suspension must have a legal basis, be justified by the needs of the organisation and be taken with due regard to the principle of proportionality. In order for a suspension measure to be taken, the official must be accused of serious misconduct.
ILOAT Judgment(s): 1927, 2365, 2365, 2698, 3037, 4452
proportionality; suspension; discretion; role of the tribunal
The request [for oral proceedings] is rejected as the central question concerning the lawfulness of the decision which the complainant challenges turns primarily on issues of law.
The suspension provided for under Staff Rule 10.1.3a) is intended to be a measure that may be taken “pending [the outcome of the] investigation” and a staff member subject to it may thus be suspended – whether with or without pay – only until the investigation is completed. As the Tribunal has already had the occasion to hold in relation to the application of similarly worded regulations of another organisation, such a reference to the possibility of suspending an official until the end of the investigation into the facts of which she or he is suspected cannot be interpreted as authorising an extension of that suspension beyond the end of the investigation in question and, in particular, during any disciplinary proceedings subsequently instituted against the official concerned (see Judgment 3880, consideration 20).
ILOAT Judgment(s): 3880
patere legem; suspension; investigation
As the complainant has articulated the effects which the decision to convert his suspension with pay into a suspension without pay had on him, and, given the serious hardship that he suffered, which ITU itself acknowledges, he is entitled to moral damages.
suspension; moral damages