Judgment No. 4011
1. The impugned decision dated 24 February 2016 is set aside, as is the original decision of 13 November 2013 to dismiss the complainant.
2. The FAO shall pay the complainant 35,000 United States dollars in material damages.
3. The FAO shall pay the complainant moral damages in the amount of 25,000 United States dollars.
4. It shall also pay her 7,000 United States dollars in costs.
5. All other claims are dismissed.
The complainant challenges the decision to dismiss her for misconduct.
complaint allowed; decision quashed; termination of employment; misconduct
In the impugned decision [...] the Director-General did not accept [the] recommendations. He fully explained the reasons for not doing so as the Tribunal’s case law requires (see, for example, Judgment 3968, under 19).
Jugement(s) TAOIT: 3968
impugned decision; motivation
Consistent precedent has it that disciplinary decisions are within the discretionary authority of the executive head of an international organization and are subject to only limited review. In Judgment 3297, consideration 8, the Tribunal stated that it will interfere only if the decision is tainted by a procedural or substantive flaw. Additionally, the Tribunal will not interfere with the findings of an investigative body unless there is manifest error (see, for example, Judgment 3872, consideration 2).
Jugement(s) TAOIT: 3297, 3872
The basic applicable principles regarding the right to due process at the investigative stage of disciplinary proceedings were stated by the Tribunal as follows in Judgment 2771, consideration 15:
“The general requirement with respect to due process in relation to an investigation – that being the function performed by the Investigation Panel in this case – is as set out in Judgment 2475, namely, that the ‘investigation be conducted in a manner designed to ascertain all relevant facts without compromising the good name of the employee and that the employee be given an opportunity to test the evidence put against him or her and to answer the charge made’. At least that is so where no procedure is prescribed. Where, as here, there is a prescribed procedure, that procedure must be observed. Additionally, it is necessary that there be a fair investigation, in the sense described in Judgment 2475 and that there be an opportunity to answer the evidence and the charges.”
However, due process must also be observed at all other stages of disciplinary proceedings. Accordingly, the following was stated in Judgment 2786, consideration 13:
“Due process requires that a staff member accused of misconduct be given an opportunity to test the evidence relied upon and, if he or she so wishes, to produce evidence to the contrary. The right to make a defence is necessarily a right to defend oneself before an adverse decision is made, whether by a disciplinary body or the deciding authority (see Judgment 2496, under 7).”
Jugement(s) TAOIT: 2475, 2496, 2771, 2786
inquiry; due process; disciplinary procedure; investigation
The complainant’s appointment, but for her dismissal, was due to expire on 31 July 2014. In those circumstances, it is inappropriate to order her reinstatement (see Judgment 3908, consideration 21). Nonetheless, she is entitled to moral and material damages for the breach of her right to due process and unlawful dismissal.
Jugement(s) TAOIT: 3908
In the Tribunal’s view, the material contradictions in their evidence required providing the complainant with an opportunity to challenge Ms E.L.’s statements. The failure to provide that opportunity at any stage of the disciplinary proceedings breached the complainant’s due process rights. Accordingly, these charges could not have been proved beyond a reasonable doubt as the Tribunal’s case law requires (see, for example, Judgment 3882, under 14).
Jugement(s) TAOIT: 3882
due process; beyond reasonable doubt