Judgment No. 3348
Decision
1. The impugned decision of 16 August 2011 is set aside.
2. The Tribunal orders that the complainant be reinstated to the former position he held at the time of his dismissal.
3. The complainant shall be paid the salary and other emoluments that he would have been paid between the time of his dismissal and the time of his reinstatement, less any amounts he has, in that time, received by way of salary and emoluments from any other employment.
4. WMO shall pay the complainant 20,000 Swiss francs as moral damages.
5. WMO shall pay the complainant 7,000 Swiss francs in costs.
6. All other claims are dismissed.
Summary
The complainant successfully impugns the decision to summarily dismiss him for misconduct (fraud).
Judgment keywords
Keywords
complaint allowed; decision quashed; termination of employment; misconduct
Consideration 7
Extract:
"In his rejoinder, the complainant addresses the question of what is meant by fraud. He contends that the standard definition of fraud is: wrongful or criminal deception intended to result in financial or personal gain; or a person or thing intended to deceive others, typically by unjustifiably claiming or being credited with accomplishments or qualities. WMO takes issue with this definition and refers to a definition of fraud from the Black’s Law Dictionary: “A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment. Fraud is usually a tort but in some cases (especially where the conduct is wilful) it may be a crime.” In Judgment 1828, considerations 10-12, which has been cited in Judgments 1925, consideration 6, and 2038, consideration 16, fraud is treated as deception intended to result in financial gain. What is important, for present purposes, is that the charges themselves link the complainant’s conduct of manipulating the records with him obtaining a financial benefit. This involves an allegation of fraud involving deception to secure financial gain and in the remainder of these reasons, the word fraud is used with this meaning."
Reference(s)
Jugement(s) TAOIT: 1828, 1925, 2038
Keywords
definition; fraud
Consideration 20
Extract:
"While the judgments of the Tribunal which establish the need for the ultimate decision-maker to explain why they refuse to follow a favourable recommendation of an internal appeal body (see for example Judgment 3161, consideration 7) do not address a case on all fours as the present, the principle nonetheless has application in this matter."
Reference(s)
Jugement(s) TAOIT: 3161
Keywords
grounds; judgment of the tribunal
Consideration 21
Extract:
"[The complainant] is [...] entitled to an order reinstating him to the position he held prior to his dismissal and compensation for loss of income, though adjusted by any income he may have received in the intervening period. Even though there was a breach of trust by the complainant, it has not been proved by WMO that the breach involved fraud [...]. The conduct which constituted that breach was in the complainant undertaking duties which were not a part of the duties for which he was initially employed and which, on the evidence before the Tribunal, are not duties it is essential that he continues to perform [...]. While the complainant engaged in conduct which was entirely unacceptable, his dismissal occurred in circumstances where the process by which dismissal was adjudged the appropriate remedy was flawed and the Secretary-General failed to give an adequate explanation for the ultimate decision to affirm the dismissal in the face of the reasons of the JAB. [...] By ordering the complainant’s reinstatement, the Tribunal is not intending to preclude the imposition of an appropriate disciplinary measure on the complainant, as proposed by the JAB."
Keywords
reinstatement; fixed-term
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