Judgment No. 4295
Decision
The complaint is dismissed.
Summary
The complainant challenges a finding made in the decision not to impose a disciplinary measure against him.
Judgment keywords
Keywords
cause of action; misconduct; impugned decision; complaint dismissed
Consideration 6
Extract:
[A] ruling by an internal appeal body on its own competence or the final decision maker’s acceptance of the ruling cannot give the Tribunal competence to hear a complaint beyond that provided in its Statute. As well, it is for the Tribunal to determine if it is competent to hear the complaint (see Judgments 1509, consideration 14, and 3247, consideration 19).
Reference(s)
Jugement(s) TAOIT: 1509, 3247
Keywords
internal appeals body; competence of tribunal
Considerations 6-8
Extract:
[A]s the Tribunal reiterated in Judgment 4145, consideration 5, Article II of the Tribunal’s Statute requires that “for a complaint to be receivable the staff member must have a cause of action and the impugned decision must be one that, by its nature, is subject to challenge” (see also Judgment 3426, consideration 16).
In his pleadings, the complainant stresses that in his appeal he only challenged “that aspect of the decision that found he had made a secret recording”. It is evident and not disputed that the complainant takes the position that the statement in section II(h) of the 8 May 2017 letter forms part of the decision articulated in that letter under the heading “Decision”. This position is flawed as it disregards the distinction between a finding of fact and a decision. As the Tribunal reiterated in Judgment 3861, consideration 5, and the cases cited therein, “the term ‘decision’ means an act by an officer of an organisation which has a legal effect”. A finding of fact, however, forms part of the reasons articulated in arriving at the decision. In Judgment 3997, consideration 7, the Tribunal stated that “the Tribunal’s jurisdiction is a challenge to a final decision with operative legal effect and not a challenge to the reasons underpinning that decision.” The Tribunal added, as consistently held in the case law, that “[o]bviously if there is a final decision with an operative legal effect then a challenge to that decision can also impugn the reasoning leading to it”.
The 8 May 2017 letter was divided into three sections: Procedure, Considerations and Decision. It is noted that the statement in section II(h), at issue in this proceeding, was one of the ten considerations in the section under the heading “Considerations”. On this basis alone, it is evident that the statement was one of the considerations underpinning the decision and not a decision. Moreover, on the face of it, it is clear that the statement “there is evidence that the recording took place” is a finding of fact and not a decision as contemplated in Article II of the Statute of the Tribunal. As for the decision itself, it was beneficial to him and, in that respect, he has no cause of action. It follows that the complaint is irreceivable and will be dismissed.
Reference(s)
Jugement(s) TAOIT: 3426, 3861, 3997, 4145
Keywords
decision; cause of action; impugned decision
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