Judgment No. 4615
1. The impugned decision and the decision to terminate the complainant’s contract are set aside.
2. The Energy Charter Conference shall pay the complainant material damages, with interest, quantified as set out in consideration 26 of the judgment.
3. The Energy Charter Conference shall pay her 5,000 euros in moral damages.
4. It shall also pay her 4,000 euros in costs.
5. All other claims are dismissed.
The complainant challenges the decision to terminate her appointment.
complaint allowed; termination of employment; disciplinary procedure
[I]n disciplinary proceedings the official concerned has a right to be informed of the charges made against her or him, as well as of the potential penalty, and has also the right to be heard or to comment thereon.
disciplinary procedure; due process in disciplinary procedure; disciplinary charges
The failure by the Secretary-General to give the complainant the opportunity to be heard before the termination of her contract affects the Secretary-General’s decision of termination […] and is decisive regarding its annulment by the Tribunal.
due process in disciplinary procedure
Considerations 20 and 23
The case law relied upon by the organisation (see Judgment 2771, consideration 18, cited below), correctly interpreted, does not allow exceptions to the necessity of a written record being made available to the concerned official, but only approves of a written record as an alternative to cross-examination or to a verbatim record. Indeed, the Tribunal held in that judgment:
“The complainant points to cases in which the Tribunal observed that the complainant had not been present when statements were taken and not given the opportunity to cross-examine witnesses [...], to object to evidence [...] or to have a verbatim record of the evidence [...] These are matters that, in the cases concerned, would have ensured that the requirements of due process were satisfied. However, they are not the only means by which due process can be ensured. In the present case, the complainant was informed of the precise allegations made against him [...], and provided with the summaries of the witnesses’ testimonies relied upon by the Investigation Panel, even if not verbatim records. He was able to and did point out [...] inconsistencies in the evidence, its apparent weaknesses and other matters that bore upon its relevance and probative value, before the finding of unsatisfactory conduct was made [...] In this way, the complainant was able to confront and test the evidence against him, even though he was not present when statements were made and not able to cross-examine the witnesses who made them.”
In the precedent quoted above, the complainant was informed of the content of the witnesses’ testimonies by written records before the decision; in the present case, the complainant acknowledged the content of the witnesses’ testimonies by means of the Advisory Board’s report, not during the proceedings but only when that report was provided to her attached to the termination decision, that is to say at a stage when she could no longer usefully comment on them.
It can be inferred from the quoted case law that two principles must be respected in an adversarial procedure: (i) not only must the oral evidence gathered be recorded in writing, even though not necessarily by a verbatim record; (ii) but also any evidence gathered must be submitted to the person concerned, for her or his comment, before the decision is adopted.
In the present case, the organisation failed to comply with both principles, as there was no written record of Mr B.’s statement and this statement was not disclosed to the complainant before she was notified of the decision endorsing the Advisory Board’s report.
In light of consideration 20 […], the Advisory Board’s recommendation is flawed with regard to the assessment of offensive act no. 1 for lack of written record. However, this flaw is not decisive in order to declare that the Advisory Board’s recommendation was unlawful in its entirety. As noted in considerations 21 and 22 [...], the Advisory Board’s finding that the complainant’s conduct amounted to harassment was based on multiple episodes and related evidence sufficient for the purpose of the adoption of measures aimed at the protection of the victim of harassment. Therefore, the Board’s report deserves considerable deference (see Judgments 4488, consideration 7, and 4180, consideration 7).
ILOAT Judgment(s): 2771, 4180, 4488
evidence; disciplinary procedure; witness; report of the internal appeals body
[T]he organisation started the process as a harassment complaint procedure and finalized it with the outcome of a different procedure, that is “termination of appointment” under Regulation 13a)i). Consequently, the organisation failed to follow a proper disciplinary procedure.
termination of employment; disciplinary procedure; harassment
[T]he Tribunal observes that the right of defence of the complainant was not affected by the fact that the officials heard as witnesses were not named. It was sufficient for the complainant to know the content of the statements and it was not necessary for her to know the witnesses’ names. Furthermore, the Advisory Board redacted some names for reasons of confidentiality, since some officials feared retaliation by the complainant: this was a reasonable step to strike a balance between the right of defence of the accused person and the right of the witnesses to be protected against retaliation.
disclosure of evidence; witness; due process in disciplinary procedure
[T]he complainant expressly states that she does not request reinstatement and therefore the Tribunal shall not order it.
The Tribunal notes that the complainant’s appointment was due to end on 30 September 2021 (three-year contract) and it was terminated on 17 June 2019. Firstly, there is no evidence that the complainant’s contract was likely to be renewed. On the contrary, in the circumstances of this case, such a prospect was purely hypothetical and even highly unlikely. Therefore, the Tribunal, in assessing the amount of material damages, will not take into account a possible renewal of the complainant’s contract (see Judgment 4139, consideration 10). Regarding the period from 17 June 2019 to 30 September 2021, the Tribunal takes into account that there is a real possibility that the complainant would have been dismissed as a result of disciplinary proceedings prior to the expiry of her appointment.
The material damages should be determined on an equitable basis as an amount equivalent to the salary and various indemnities the complainant would have received if her employment had continued for one year subsequent to the date of termination, net of any income from other employment received during that year. The organisation shall also pay the complainant the equivalent of the pension contributions that it would have had to pay for her during the same period. All these amounts shall bear interest at the rate of 5 per cent per annum as from the date on which they fell due until the date of payment.
The Tribunal finds that the unlawful imposition of the termination measure deprived the complainant of the requirements of due process that would have been open to her in adversarial proceedings, had a disciplinary measure been imposed (see Judgments 3848, consideration 9, and 2861, consideration 105).
ILOAT Judgment(s): 2861, 3848
The complainant also alleges damage to her health and produces a medical certificate to prove her allegation. Said medical certificate describes her symptoms in general terms but does not prove that they are work-related.