Judgment No. 2261
1. THE IMPUGNED DECISION IS SET ASIDE AND THE MATTER REFERRED BACK TO THE DIRECTOR-GENERAL FOR A NEW DECISION ON THE APPROPRIATE PENALTY ON THE FIRST CHARGE ONLY.
2. THE COMPLAINANT IS TO BE REINSTATED WITH FULL SALARY AND BENEFITS FROM THE DATE OF HIS DISMISSAL, 31 MAY 2000.
3. THE ORGANIZATION SHALL PAY HIM COSTS IN THE AMOUNT OF 2,000 EUROS.
The complainant challenges a disciplinary measure of dismissal for misconduct based on the following three charges: (1) external commercial activities and misrepresentation, (2) disloyalty, and (3) insubordination. In the challenged decision, the Director-General refused to follow the Appeals Committee's recommendation to the effect that the three charges be dismissed and confirmed the dismissal, dealing in detail with the first charge. Although the Tribunal acknowledges that the evidence justifies the Director-General's position, it sets aside the impugned decision because "the Director-General entirely failed to give any reason whatsoever for disagreeing with the Committee's recommendations respecting the second and third charges". The Tribunal adds that "it is not for [...] itself [to] examine the evidence to find justification for the unmotivated decision of the Director-General. [...] Nor should it condone the organization's failure to bring the internal appeal process to a timely and proper conclusion effectively depriving the complainant of both his remedy and his employment for over three years. Accordingly, it will quash the penalty on the first charge only and refer the matter back to the Director-General for a new decision on the penalty after giving the complainant full opportunity to make representations."
decision; duty to substantiate decision; internal appeals body; internal appeal; report; right of appeal; time limit; right to reply; due process; organisation's duties; separation from service; termination of employment; misconduct; conduct; concurrent employment; fitness for international civil service; insubordination; disciplinary measure; executive head; refusal
The complainant's submission that the punishment imposed by the Director-General was disproportionate now takes on added importance. The penalty of dismissal was upheld by him on the assumption that the appeals of all three charges were properly dismissed, but they were not. It is clear that the Director-General simply did not turn his mind to the question of whether or not the first charge alone justified the penalty of dismissal, the most serious punishment available. The Tribunal itself cannot impose a penalty but equally cannot allow a penalty to stand if it has manifestly been imposed on an erroneous assumption. Nor should it condone the Organization's failure to bring the internal appeal process to a timely and proper conclusion effectively depriving the complainant of both his remedy and his employment for over three years. Accordingly, it will quash the penalty on the first charge only and refer the matter back to the Director-General for a new decision on the penalty after giving the complainant full opportunity to make representations. Any penalty thus imposed is to take effect only from the date of the Director-General's new decision. The complainant must account for any outside earnings during the period of his reinstatement. In the circumstances, the Tribunal will not award any moral damages.
moral injury; reinstatement
There is no substance to the allegation of failure of due process. In particular, the mission report which gave the Organization information on which to base the decision to charge him, was a preliminary investigative tool and the complainant had no right to review its contents prior to the decision being made that the disciplinary procedure should be started. Once that procedure was under way, the complainant was given ample communication of the case against him and was afforded full opportunity to answer and make his defence. It was no breach of the principle of good faith for the Organization to ask the complainant for a statement of his activities and subsequently to use such statement, which was entirely exculpatory, as evidence of his deliberate attempt to mislead the investigation, which it manifestly was.
inquiry; adversarial proceedings; investigation; due process in disciplinary procedure; investigation report; disciplinary charges