Judgment No. 4516
Decision
1. The impugned decision, dated 19 July 2021, is set aside.
2. The matter is remitted to ITU in accordance with consideration 10 of this judgment.
3. ITU shall pay the complainant costs in the amount of 7,000 Swiss francs.
4. All other claims are dismissed.
Summary
The complainant challenges the decision not to investigate his allegations of harassment.
Judgment keywords
Keywords
complaint allowed; case sent back to organisation; patere legem; harassment; investigation
Consideration 7
Extract:
[P]aragraph 15 [of Service Order No. 19/08] contains the word “must”. Often provisions conferring a power use the word “must” or “shall” or, alternatively, “may”. Ordinarily the word “must” is, in such a context, construed as imposing a duty on the repository of the power to exercise the power. Ordinarily the word “may” is construed as creating a discretion in the repository of the power whether to exercise the power. Occasionally, the context in which either word is used might result in a construction of the provision conferring the power which is at odds with its ordinary meaning.
In the present case, the context in which the word “must” is used is consistent with its ordinary meaning.
Keywords
patere legem; interpretation
Consideration 11
Extract:
As the complainant has not substantiated his allegations that the decision to close the case was taken for an improper purpose amounting to abuse of authority (see, for example, Judgments 3172, consideration 16, and 3939, consideration 10) or that it was based on bias (see, for example, Judgment 4010, consideration 9); that it was tainted by personal prejudice (see, for example, Judgment 3912, consideration 13) or bad faith (see, for example, Judgment 3902, consideration 11), there is no basis on which to grant exemplary damages which he claims (see, for example, Judgment 3092, consideration 16).
Reference(s)
ILOAT Judgment(s): 3092, 3172, 3902, 3912, 3939, 4010
Keywords
bias; exemplary damages; personal prejudice; abuse of power
Consideration 12
Extract:
With respect to the claim for exemplary damages, the Tribunal notes that in general these awards are meant to sanction bias, ill will, malice, bad faith, and other improper purpose (see, for example, Judgment 3092, consideration 16).
Reference(s)
ILOAT Judgment(s): 3092
Keywords
exemplary damages
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