Judgment No. 635
Decision
1. THE IMPUGNED DECISION IS SET ASIDE.
2. THE COMPLAINANT IS REINSTATED.
3. THE FAO SHALL PAY HER 10,000 FRENCH FRANCS IN COSTS.
Consideration 6
Extract:
According to the material provisions of the Staff Regulations, staff members must exercise the utmost discretion in all matters of official business. The dispute between the complainant and the organization did not concern official matters. "The staff member believed, rightly or wrongly, that she had suffered injustice and she was not bound to absolute secrecy. In any case fellow staff and her family and friends outside the FAO must have known she had been suspended from duty."
Keywords
duty of discretion; disciplinary measure; purport
Consideration 7
Extract:
The complainant denies that she was ever in gross breach of the duty of discretion. She claims never to have been in touch with journalists neither herself nor through anyone else. "She can go no further than that since it is impossible to adduce evidence to rebut the charge. Her statement that she did not commit the misconduct she is charged with shifts the burden of proof to the organization. The Tribunal will not require absolute proof, which is almost impossible to provide on such a matter." A set of precise and concurring presumptions would be sufficient.
Keywords
organisation; evidence; burden of proof; presumption of innocence; misconduct; serious misconduct; duty of discretion; standard of proof
Consideration 11
Extract:
The organization accuses the complainant of gross breach of her duty of discretion. The Tribunal finds that the decision to dismiss her was based on facts which were not sufficiently established. "Dismissal is too drastic a measure for the staff member not to have the benefit of the doubt. The decision being quashed, the complainant is entitled to straightforward reinstatement since the Tribunal sees no reason to award her damages in lieu. Since she seeks damages only if not reinstated the Tribunal need not rule on this claim."
Keywords
benefit of doubt; proportionality; reinstatement; termination of employment; misconduct; serious misconduct; disciplinary measure
Consideration 9
Extract:
The organization accuses the complainant of gross breach of her duty of discretion. It contends that she was directly responsible for leaking information to the press which resulted in newspaper articles. "The three articles take the complainant's side and put the organization in a bad light. But [...] this is not enough to create precise and concurring presumptions which might afford justification for the [dismissal] decision."
Keywords
presumption of innocence; termination of employment; misconduct; serious misconduct; duty of discretion; organisation's reputation
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