Judgment No. 4540
Decision
1. The impugned decision of 22 June 2020 is set aside, as is the decision of 15 November 2018.
2. PAHO shall pay the complainant 45,000 United States dollars in material damages.
3. PAHO shall pay the complainant 5,000 United States dollars in costs.
4. All other claims are dismissed.
Summary
The complainant challenges her dismissal as a result of disciplinary proceedings.
Judgment keywords
Keywords
complaint allowed; termination of employment; disciplinary measure
Considerations 4-5
Extract:
The Tribunal derives its jurisdiction from its Statute. In an early case it was described as “a [c]ourt of limited jurisdiction [...] bound to apply the mandatory provisions governing its competence” (see Judgment 67, consideration 3). One of the Tribunal’s central roles, founded on Article II of the Statute, is to enforce compliance with staff regulations where they have not been observed. The touchstone of its jurisdiction is, in this respect, lawfully adopted staff regulations or rules of international organisations. The provisions in the staff regulations and rules are the starting point in the exercise of jurisdiction. Accordingly, Staff Rule 1230.7.2 which provides that the final decision in an appeal is made by the Director, must be respected and given full effect. The Director was authorised to make the decision in the appeal in the present case and her decision was not tainted by illegality as alleged by the complainant.
Cases do arise in the Tribunal where the decision appealed against and the decision in the appeal are made by the same person, but the latter decision involves a rejection of recommendations of the appeal body. The discussion in the preceding consideration is not intended to suggest that in such cases there is no real scrutiny by the Tribunal of that latter decision and the reasons given. To the contrary, there is. The Tribunal’s case law is replete with examples where the motivation for the rejection has been found to be inadequate and the decision in the appeal has been set aside (see, for example, Judgments 4427, consideration 10, 4259, considerations 11 and 12, and 4062, consideration 4). This approach has the effect of respecting rules conferring, ordinarily, on the executive head of an organisation the power to make the final decision in an appeal even if an appeal from a decision of that person, while recognising the vitally important role appeal bodies play and the need to give considerable weight to findings and recommendations they make.
Reference(s)
Jugement(s) TAOIT: 67, 4062, 4259, 4427
Keywords
competence of tribunal; final decision; administrative decision; conflict of interest
Consideration 13
Extract:
The complainant seeks reinstatement. In all the circumstances and particularly having regard to the three matters referred to in the preceding consideration and notably the third, it is more likely than not that the complainant will not establish a satisfactory working relationship with her colleagues and supervisors in PAHO (see Judgment 4310, consideration 13), if reinstated. Nonetheless, the complainant has lost a valuable opportunity to continue in employment with PAHO and it cannot be assumed there is no prospect at all, of her entirely abandoning her confrontational, rude and disagreeable behaviour. She is entitled to material damages for this loss […].
Reference(s)
Jugement(s) TAOIT: 4310
Keywords
material injury; reinstatement; loss of opportunity
Consideration 14
Extract:
At least in the ordinary course, moral damages flow from the moral injury caused by the unlawful conduct of the organisation. They are not intended to compensate for the emotional effect of litigation, which in any event is unproved in this case.
Keywords
moral damages
Consideration 11
Extract:
[T]he failure to give the complainant a written warning and a reasonable time to improve was an important factor to be considered in determining what was an appropriate measure having regard to her conduct, even as determined by the Director in the impugned decision. Indeed, having regard to the terms of Staff Rule 1070.2, no decision to dismiss should have been made in the absence of a warning and providing a reasonable time to improve. The measure of dismissal under Staff Rule 1070 was unlawful. Accordingly, the impugned decision should be set aside.
Keywords
due process; patere legem; termination of employment; warning
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