Judgment No. 13
Decision
The Tribunal orders the rescission of the impugned decision of 8 April 1953 and the undated decision of the Director-General regarding the whole procedure followed in consequence;
And,
Failing the reinstatement of the complainant in its service by the defendant Organisation,
Orders that Organisation to pay the complainant, by way of compensation in reparation, an amount equivalent to fifteen months' salary, together with interest at 4 per cent. as from 5 June 1953, an amount of three thousand dollars to be added to the whole by reason of the material and moral damage incurred by the complainant between 8 April 1953 and the date of the present judgment, independently of repatriation expenses,
Orders the defendant Organisation to pay the complainant the sum of 300 dollars by way of participation in the cost of his defence,
With regard to the statement of Mr. Leutenegger, declares that statement receivable insofar as it is made in his own name and orders the defendant to bear any expenses which arise from that statement and for which justification is provided.
Considerations
Extract:
"The Administrative Tribunal of the United Nations, in its Judgement No. 4, stated 'that, while it is not for the Tribunal to substitute its judgment for that of the Secretary-General with respect to the adequacy of the grounds for termination stated, it is for the Tribunal to ascertain that an affirmative finding of cause which constitutes reasonable grounds for termination has been made, and that due process has been accorded in arriving at such an affirmative finding'."
Reference(s)
ILOAT reference: ARTICLE VII, PARAGRAPH 2, OF THE STATUTE
Jugement(s) TAOIT: 4
Keywords
grounds; probationary period; termination of employment; judicial review
Considerations
Extract:
"The discretionary power of the Director-General in this matter cannot be exercised for reasons not clearly specified [...] He cannot invoke one reason for exercising his powers when in reality his action is based on another reason since this would constitute misuse of power likely to lead to rescission of the decision."
Keywords
grounds; probationary period; termination of employment; discretion; misuse of authority; abuse of power
Considerations
Extract:
The Director-General based his decision on the provision empowering him to dismiss at any time a probationer whose services are deemed unsatisfactory on condition that the reasons for the decision be given in writing. The internal appeals body believed that the provision on the interests of the organization afforded a further possible justification for the measure. The director confirmed the decision. "At that stage [...] a change of grounds would have vitiated the procedure".
Keywords
duty to substantiate decision; grounds; staff regulations and rules; amendment to the rules; enforcement; probationary period; termination of employment; unsatisfactory service; discretion; organisation's interest; flaw; procedural flaw
On the substance
Extract:
The organization refused to disclose a document which directly concerned the complainant. "In consequence, it is the duty of the Tribunal to consider as established the fact that the decision [to dismiss the complainant] is not really based on the grounds of unsatisfactory service but on personal considerations extraneous to such grounds [...]. It therefore constitutes an act of misuse of power and must be rescinded."
Keywords
grounds; organisation; disclosure of evidence; probationary period; termination of employment; misuse of authority; bias; refusal; presumption; abuse of power
On the substance
Extract:
The existence of a secret document vitiates the equitable application of the Regulations and affects both the interests of the staff as a whole and that of justice itself. "Vide, Judgment No. 15 of the United Nations Administrative Tribunal: 'the applicant cannot be penalised because certain information is considered by the respondent as confidential and the applicant has no opportunity either of knowing that the reason is or of challenging it."
Keywords
organisation; judgment of the tribunal; unat; confidential evidence; disclosure of evidence; case law; right to reply; flaw; refusal
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