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Disguised disciplinary measure (876,-666)

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Keywords: Disguised disciplinary measure
Total judgments found: 1

  • Judgment 4231


    129th Session, 2020
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to extend his fixed-term appointment and to place him on special leave with pay until his contract expired.

    Consideration 10

    Extract:

    The complainant’s plea that the non-extension of his appointment was a disguised disciplinary measure amounting to constructive dismissal is unfounded. In the first place, the notion of constructive dismissal is inapplicable in the present case. The FAO opted not to extend his contract on its expiry. Constructive dismissal, on the other hand, signifies that an organisation has breached the terms of a staff member’s contract in such a way as to indicate that it will no longer be bound by that contract. A staff member may treat that as constituting constructive dismissal with all the legal consequences that flow from an unlawful termination of the contract, even if she or he has resigned (see Judgments 2745, consideration 13, and 2967, consideration 9). Moreover, in the Tribunal’s view, the circumstances which culminated in the non-extension may lead to conjecture (but are not proof) that the decision may have been a hidden sanction. This is given the contents of the exchanges in his progress report of 8 June 2013 to the Deputy Director-General for Operations, his letter of 5 May 2014 to the Director-General; the latter’s reply of 9 June 2014 and the complainant’s response of 17 June 2014 culminating in the letter of 4 July 2014, which contains the contested decision. However, as the Tribunal has consistently stated, in Judgment 2907, consideration 23, for example, “the existence of a hidden disciplinary measure cannot be inferred from mere conjecture and could not be accepted unless it were proven”.

    Reference(s)

    ILOAT Judgment(s): 2745, 2907, 2967

    Keywords:

    constructive dismissal; disguised disciplinary measure;


 
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