Judgment No. 4680
Decision
1. The impugned decision to dismiss the complainant is set aside.
2. The matter is remitted to the ITER Organization, as discussed in consideration 7 of the judgment.
3. The ITER Organization shall pay the complainant 20,000 euros moral damages.
4. The ITER Organization shall pay the complainant 10,000 euros costs.
5. All other claims are dismissed.
Summary
The complainant impugns the decision to impose on him the disciplinary measure of dismissal with forfeiture of an indemnity for loss of job.
Judgment keywords
Keywords
complaint allowed; termination of employment
Consideration 6
Extract:
The question of interpretation which arises […] is whether Article 23.2(g) obliges the Director-General to notify the staff member of the specific disciplinary measure she or he then intends to impose, or it is sufficient to repeat, as happened in this case, that a disciplinary measure of those listed will be imposed. The provision is ambiguous. One meaning is that the words “notify the staff member [...] that a disciplinary measure among those listed in Article 23.3 of these Regulations will be imposed” requires notification of what disciplinary measure will be imposed, with the words “among those listed in Article 23.3” identifying the four measures from which one can be chosen and nominated. The other meaning is that it is sufficient to repeat that an unidentified disciplinary measure of those listed in Article 23.3 will be imposed. In Judgment 4639, consideration 3, the Tribunal stated: […]
It would obviously favour the staff member to treat Article 23.2(g) as requiring disclosure of the specific disciplinary measure which will be imposed (subject, of course, to the procedures in Article 23 itself) in order to arm her or him with information relevant to the question of whether to request that a Disciplinary Board examine her or his case. It would usually be the case that the staff member would be far more inclined to seek such an examination if dismissal was in contemplation rather than, for example, a written censure. As was noted in one of the Tribunal’s earlier reported cases, Judgment 203, consideration 2, the imposition of the disciplinary sanction of discharge or summary dismissal could cause serious harm to the staff member and her or his family. This interpretation, namely that the specific disciplinary measure proposed must be notified pursuant to Article 23.2(g), would also give rise to a fairer and more balanced procedure. It would be fairer because it would give the concerned staff member an opportunity to argue before the Disciplinary Board that the specific disciplinary measure in contemplation was disproportionate, or otherwise inappropriate, as well as giving the Disciplinary Board an opportunity to review what is in contemplation in formulating the recommendation required by Annex VII(2)(c) of the Staff Regulations.
Reference(s)
Jugement(s) TAOIT: 4639
Keywords
interpretation; disciplinary measure; notification
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