Judgment No. 4586
Decision
1. The decisions of 18 March and 18 May 2020 are set aside to the extent that the complainant was suspended without pay, as is the impugned decision of 20 April 2020 to the extent that it maintained those two earlier decisions.
2. IOM shall pay the complainant material damages as stated in consideration 15 of this judgment.
3. IOM shall also pay the complainant moral damages in the amount of 5,000 United States dollars.
4. IOM shall also pay the complainant costs in the amount of 7,000 Swiss francs.
5. All other claims are dismissed.
Summary
The complainant contests the decision to convert his suspension with pay into a suspension without pay pending an investigation for misconduct against him, as well as the overall length of his suspension.
Judgment keywords
Keywords
complaint allowed; suspension without pay
Consideration 1
Extract:
The complainant requests an oral hearing. However, in view of the ample and sufficiently clear written submissions and evidence provided by the parties, the Tribunal considers that it is fully informed about the case to make a decision on the issues raised in the complaint. It will not therefore grant this request.
Keywords
oral proceedings
Consideration 8
Extract:
The Tribunal’s case law has it that the grounds for reviewing the exercise of the discretionary power to suspend a staff member are limited to questions of whether the decision was taken without authority, in breach of a rule of form or procedure, was based on an error of fact or law, involved an essential fact being overlooked or constituted an abuse of authority and that the suspension of an official is a provisional measure which in no way prejudges the decision on the substance of any disciplinary measure against her or him. However, as a restrictive measure on the staff member concerned, the suspension must have a legal basis, be justified by the needs of the organization and be taken with due regard to the principle of proportionality (see Judgment 4515, consideration 4, and the case law cited therein).
Reference(s)
Jugement(s) TAOIT: 4515
Keywords
suspension; discretion
Consideration 10
Extract:
Rule 10.3 does not make any explicit provision for an official concerned to be heard before the decision to suspend her or him is announced. Indeed, suspension is an interim precautionary measure which, in principle, must be adopted urgently, and this will often make it impossible to invite the person concerned to express her or his opinion beforehand. Nevertheless, a person’s right to be heard must be exercised before the substantive decision is taken to impose a disciplinary sanction (see Judgments 3138, consideration 10(a), and 2365, consideration 4(a)).
Reference(s)
Jugement(s) TAOIT: 2365, 3138
Keywords
due process; suspension; right to be heard
Consideration 11
Extract:
In assessing whether the decisions to suspend without pay were unlawful having regard to the terms of Rule 10.3, three matters should be noted at the outset. The first is that there was not one decision to suspend without pay but, as the complainant contends, multiple decisions. They were made on 26 March 2019, 26 June 2019, 23 July 2019, 26 September 2019, 16 December 2019, 18 March 2020 and 18 May 2020. Whether each, some or none of these decisions were legally flawed having regard to the principles discussed in consideration 8 [of this judgment] can be assessed by reference to the circumstances existing at the time each decision was made.
Keywords
suspension without pay
Consideration 14
Extract:
The reasons given for the suspension without pay from 26 March 2019, and in effect the reason for transforming the suspension as one with pay to one without pay, was [...] that: “[t]he various interviews that have been conducted by OIG, including with you, and the strong evidence gathered thus far in the course of the investigation have reinforced the credibility of the allegations raised against you” and later: “the elements gathered by OIG [...] reinforce[d] the credibility of the allegations raised against you”. The letter of 26 March 2019 does not refer to the requirement in the rules that suspension without pay can only occur if the Director General (or a person acting on delegation) considers there are exceptional circumstances. But it can reasonably be inferred that the additional elements just quoted were viewed as constituting exceptional circumstances. The legal question which then arises is whether it was reasonably open to the decision-maker to form that opinion. The word “exceptional”, in this context, denotes circumstances which are beyond, and probably well beyond, circumstances which might simply justify suspension with pay. But apart from that, the expression “exceptional circumstances” is an expression of great width. It must be borne in mind that the power to suspend does not simply arise in circumstances where allegations of serious misconduct are being investigated or pursued in disciplinary proceedings (as it does in some other organisations’ rules). The power to suspend as expressly conferred by IOM’s rules can be exercised in relation to any conduct which might lead to a disciplinary sanction which could include alleged minor transgressions. But, of course, questions of proportionality can arise as discussed in consideration 8 [...]. Moreover, under Rule 10.3(d) a person suspended without pay is entitled to receive pay withheld if the allegations against the staff member were not substantiated or later found not to warrant summary dismissal. In this respect, the Rule itself ameliorates what otherwise might be viewed as the severe effect of suspension without pay. What, in substance, the letter of 26 March 2019 was saying was that the case against the complainant involving the receipt of corrupt payments of approximately 600,000 United States dollars (and solicited by him) was one where there was a much-increased measure of certainty, in the eyes of the Organization, that in fact corrupt payments in this amount had been received. If proved it would be a gross misconduct of the most egregious kind and almost certainly criminal behaviour. The decision-maker was entitled, in the Tribunal’s view, to treat the highly likely fact that the complainant had received corrupt payments in this amount solicited by him, as giving rise to exceptional circumstances in all the circumstances.
Keywords
motivation; motivation of final decision; suspension without pay
Consideration 15
Extract:
However, as time passed, other considerations bore upon the issue of whether the complainant could reasonably be suspended without pay. It should be noted that all subsequent letters suspending the complainant without pay for a further period do not add to, or alter, the reasons given in the letter of 26 March 2019. One such consideration was that the suspension without pay was made in circumstances where, as required by the original decision of 4 October 2018, the complainant could not leave his duty station. He says in his pleas, and this is not really challenged, this limited his capacity to obtain income from other sources. Whether he could engage in other employment as a member of staff of IOM (albeit suspended), is problematic. Nonetheless, what is undoubtedly true is that having no income as a staff member diminished the complainant’s capacity to support his family even allowing for the possibility that he had retained some or all the money alleged to have been received as bribes. Another consideration is that the investigation by the OIG finally concluded, by the issuing of a report, in April 2020. Its report suggests that its active pursuit of the investigation concluded sometime shortly after mid-March 2020 when the complainant responded to the OIG’s draft investigation report of January 2020. At least, by that point, there could be no suggestion of the complainant interfering with the investigation, thus removing one of the foundational elements of the initial decision to suspend as well as the initial decision to suspend without pay. The Organization’s failure to take into account the ongoing economic impact on the complainant together with, more importantly, the matter discussed in the preceding sentence, tainted its decisions to suspend the complainant without pay made on 18 March 2020 and 18 May 2020 and they should be set aside to the extent that they suspended the complainant without pay.
Keywords
suspension without pay
Consideration 16
Extract:
By prolonging the suspension without pay unlawfully, the Organization caused the complainant moral injury. This must be redressed by way of moral damages as the complainant has articulated the effects which the decision to convert his suspension with pay into a suspension without pay and the length of such suspension had on him.
Keywords
moral injury; moral damages
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