Judgment No. 4659
Decision
1. The decision of the Secretary General of Interpol of 24 December 2018 and the decision of 6 February 2020, insofar as it concerned the complainant’s dismissal, are set aside.
2. Interpol shall pay the complainant material damages as stated in considerations 10 and 11 of the judgment.
3. The Organization shall pay the complainant moral damages in the amount of 25,000 euros.
4. It shall also pay him costs in the amount of 8,000 euros.
5. All other claims are dismissed.
Summary
The complainant challenges the decision to dismiss him for serious misconduct.
Judgment keywords
Keywords
complaint allowed; summary dismissal
Consideration 4
Extract:
The Tribunal notes that it is undisputed that the preliminary inquiry report was never sent to the complainant in its entirety, even in a version redacted to the extent necessary to maintain the confidentiality of some aspects of the investigation, linked in particular to protecting the interests of third parties. It is true that, as the Organization argues, the actual disciplinary proceedings were only initiated by the notification of the Secretary General’s confidential memorandum of 26 March 2018. However, the fact remains that the preliminary inquiry report also constitutes obviously an important element of the proceedings in the present case, since the charges initially brought against the complainant were based on that report and it had been forwarded to both the Joint Disciplinary Committee and the Joint Appeals Committee, which took it into consideration in their respective opinions.
It follows that Staff Rule 10.3.2(5), under which the official concerned “[shall] have access to all documents and forms of evidence submitted to the Joint Committees” was not complied with and there was a breach of due process as established in the Tribunal’s case law (see Judgments 4412, consideration 14, 4310, consideration 11, and 3295, consideration 13).
Reference(s)
ILOAT Judgment(s): 3295, 4310, 4412
Keywords
disclosure of evidence; adversarial proceedings; disciplinary measure; disciplinary procedure; investigation report; confidentiality
Consideration 6
Extract:
[T]he complainant argues that, in breach of Staff Rule 10.3.5(2), the opinion of the Joint Disciplinary Committee was not signed by its members.
The Tribunal observes that the consultative opinion of the Joint Disciplinary Committee officially filed by the Organization has not been signed, nor does it indicate the date on which it was delivered. When questioned on this point, Interpol acknowledged that the consultative opinion had not been signed but confirmed that the opinion “was sent by email [...] by one of the members of the Committee with a copy to the Chairman and the other members of the Committee”, and it produced a copy of the email to which the opinion had been attached.
The Tribunal points out that Staff Rule 10.3.5(2) provides expressly that “[t]he Chairman of the relevant Joint Committee shall sign the consultative opinion”. It is plain that this formality was not observed, and Interpol’s explanations clearly do not change that fact. Moreover, the Tribunal considers that the failure to comply with this requirement, the purpose of which is to guarantee the authenticity of the Committee’s opinion, constitutes a substantial flaw. That finding particularly applies to disciplinary proceedings.
Keywords
disciplinary procedure; signature; disciplinary body
Consideration 8
Extract:
Ordinarily, an official dismissed for disciplinary reasons whose dismissal is set aside is entitled to reinstatement if she or he holds an indeterminate appointment, which the complainant did. However, the Tribunal may decide not to make such an order if reinstatement is no longer possible or if it is inappropriate. According to the Tribunal’s case law, reinstatement may be inappropriate if the official concerned would not be able to establish a satisfactory working relationship with her or his colleagues and supervisors (see Judgments 4622, consideration 15, and 4540, consideration 13).
So it is in this case. The evidence on the file shows that the complainant had a conflictual relationship with many of his colleagues, as well as with his supervisors. His reinstatement in the Organization would therefore raise obvious difficulties and will not be ordered.
Reference(s)
ILOAT Judgment(s): 4540, 4622
Keywords
reinstatement; disciplinary measure
Consideration 13
Extract:
As regards moral injury, the Tribunal considers that the unlawfully imposed sanction of dismissal caused the complainant obvious moral injury, notably because it was, as he states, liable to plunge him into deep distress. In the circumstances of the case, the Tribunal considers that this injury will be fairly redressed by ordering the Organization to pay the complainant damages of 25,000 euros on this account.
Keywords
moral injury
Consideration 5
Extract:
The Tribunal notes that the decision to dismiss the complainant for serious misconduct, taken by the Secretary General on 24 December 2018 and confirmed by the impugned decision, states that the disciplinary measure imposed was based on several acts of misconduct, one of which was expressly presented as particularly serious, that is the complainant’s withholding of lists of foreign terrorists.
However, the Tribunal observes that, as the complainant submits, the latter act of misconduct was not included in the confidential memorandum of 26 March 2018 notifying the complainant of the charges against him, even though it had a clear impact in the assessment of the seriousness of the disciplinary penalty to be ordered. In fact, it is apparent from the evidence that the complainant was only officially informed of this new charge on the actual day of his hearing before the Joint Disciplinary Committee, at which he was directly invited to present his comments on the matter.
More generally, the Tribunal finds that, as the complainant contends, due process was clearly breached by the fact that he was unable to prepare his defence before the Joint Disciplinary Committee effectively, if necessary with the assistance of his counsel, and that, contrary to what had been promised to him on various occasions during the proceedings by the Chairman of the Committee, he was unable to participate actively in the processing of the evidence by criticising the evidence gathered by the Organization and putting forward his own (see, in that regard, Judgments 4011, consideration 9, 3295, consideration 11, and 1661, consideration 3).
Reference(s)
ILOAT Judgment(s): 1661, 3295, 4011
Keywords
adversarial proceedings; disciplinary measure; disciplinary procedure
Consideration 12
Extract:
[T]he complainant seeks payment of the “termination indemnity”, that is to say the indemnity on termination of appointment provided for in Staff Rule 11.3.1. However, as the Organization correctly states, this claim was raised for the first time in the rejoinder and is thus irreceivable (see Judgments 4487, consideration 15, 4396, consideration 7, 4221, consideration 7, and 4092, consideration 10).
Reference(s)
ILOAT Judgment(s): 4092, 4221, 4396, 4487
Keywords
new claim; rejoinder
Consideration 14
Extract:
[D]espite the conspicuous nature of some of the defects identified, there are no grounds to accept the complainant’s claim for exemplary or punitive damages. An award of such damages is only warranted in exceptional circumstances, which are not evident in this case.
Keywords
punitive damages; exemplary damages
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