Judgment No. 3848
1. The Director General’s 24 April 2014 decision is set aside, as is his earlier decision of 2 August 2013.
2. IOM shall pay the complainant moral damages in the amount of 30,000 United States dollars.
3. IOM shall pay the complainant costs in the amount of 7,000 dollars.
4. IOM shall within 15 days of the date of the public delivery of this judgment remove all materials in the complainant’s personnel file in relation to the allegations and findings of misconduct and any decision(s) taken in relation to those allegations and findings.
5. All other claims are dismissed.
The complainant challenges the decision not to renew his special short-term contract for serious misconduct.
complaint allowed; decision quashed; short-term; non-renewal of contract; misconduct; hidden disciplinary measure
[T]here is nothing in the record indicating if or when the Director General determined that the serious misconduct had been established beyond a reasonable doubt. If he did rely on the conclusion reached in the Investigation Report, that reliance was misplaced. Such a conclusion was clearly beyond the scope of the Investigation Team’s mandate and Terms of Reference that were limited to fact-finding. [...] This was the expression of an opinion that does not belong in a fact-finding report, was highly prejudicial to the complainant and undermines the fairness of the reporting.
inquiry; serious misconduct; standard of proof; investigation; investigation report
Although it is true that the non-renewal of a contract is not one of the disciplinary measures that the Director General may impose pursuant to Staff Regulation 10(b), it does not follow, as IOM contends, that the decision not to renew the complainant’s contract was a discretionary decision. A finding of misconduct is one that is only made in the context of a disciplinary process. For example, in contrast with an administrative determination regarding unsatisfactory service, misconduct must be proved beyond a reasonable doubt, a standard of proof that is only applicable in a disciplinary proceeding. Further, a finding of misconduct is the final step in the disciplinary process before the imposition of a disciplinary measure.
In the present case, it is not disputed that the decision not to renew the complainant’s contract was based solely on the finding of misconduct. In these circumstances, the only conclusion that can be drawn is that the non-renewal of the complainant’s contract was not an administrative discretionary decision, it was a disguised disciplinary measure and was unlawful. The case law consistently states that even if an organization’s regulations, rules and other relevant documents do not provide for formal disciplinary procedures, the disciplinary process requires that “before deciding a disciplinary sanction” the concerned staff member must be given “ample opportunity to take part in adversarial proceedings, in the course of which he is given the opportunity to express his point of view, put forward evidence and participate in the processing of the evidence submitted in support of the charges against him” (see Judgment 3682, consideration 12).
Jugement(s) TAOIT: 3682
case law; due process; misconduct; disciplinary procedure; hidden disciplinary measure
Having initiated a disciplinary process, fairness dictates that it was incumbent on the organization to bring the disciplinary process to a close. This necessitates a decision dismissing the allegations or the imposition of a disciplinary measure. This was not done.
The Director General’s unlawful imposition of a disguised disciplinary measure deprived the complainant of the requirements of due process and consultation with the Staff Association Committee that would have been open to him in an adversarial proceeding had a disciplinary measure been imposed.
due process; hidden disciplinary measure
The complainant initially asked the Tribunal to order his reinstatement. However, subsequently, in his rejoinder, he abandoned that request and asked the Tribunal to assign him to another similar post. This request is rejected as the Tribunal cannot assign officials to a different post.