Judgment No. 4674
Decision
1. The impugned decision of 16 August 2019 and the decision of 20 October 2017 to dismiss the complainant are set aside.
2. PAHO shall pay the complainant 40,000 Swiss francs in moral damages.
3. PAHO shall pay the complainant 120,000 Swiss francs in material damages.
4. PAHO shall pay the complainant 10,000 Swiss francs for costs.
5. All other claims are dismissed.
Summary
The complainant challenges the decision to dismiss her for misconduct.
Judgment keywords
Keywords
complaint allowed; termination of employment; misconduct
Consideration 5
Extract:
[I]t is desirable to refer to the role of reports or opinions of internal appeal bodies in the Tribunal’s consideration of issues raised in a complaint. It has been put in a variety of ways, and comparatively recently in Judgment 4644, consideration 5:
“[If the internal appeal body’s opinion] is balanced and considered, [...] its findings and conclusions must be given considerable deference (see, for example, Judgments 4488, consideration 7, 4407, consideration 3, and 3858, consideration 8).”
Indeed, also comparatively recently, the Tribunal said, in relation to both the opinion of an internal appeals body and an investigative body established by the rules of the organization concerned, in Judgment 4237, consideration 12:
“According to the Tribunal’s case law (see, for example, Judgments 3757, under 6, 4024, under 6, 4026, under 5, and 4091, under 17), ‘where an internal appeal body has heard evidence and made findings of fact, the Tribunal will only interfere if there is manifest error (see Judgment 3439, consideration 7)’. Moreover, where there is an investigation by an investigative body in disciplinary proceedings, ‘it is not the Tribunal’s role to reweigh the evidence collected by an investigative body the members of which, having directly met and heard the persons concerned or implicated, were able immediately to assess the reliability of their testimony. For that reason, reserve must be exercised before calling into question the findings of such a body and reviewing its assessment of the evidence. The Tribunal will interfere only in the case of manifest error (see Judgments 3682, under 8, and 3593, under 12)’ (see Judgment 3757, under 6).”
It is true that the Board of Appeal did not hear the witnesses in the present case. It did, however, review a large amount of documentary material, including the records of interviews, and made findings of fact based on this material. The opinion of the Board of Appeal is, on some relevant matters, balanced and considered and has to be given the deference spoken of in the Tribunal’s case law.
Reference(s)
ILOAT Judgment(s): 3439, 3593, 3757, 3858, 4024, 4026, 4091, 4237, 4407, 4488, 4644
Keywords
evidence; report of the internal appeals body
Considerations 9-10
Extract:
A difficulty with this approach of the Board is that while it may be true, based on its findings, that the complainant should have known, and possibly inferentially did know, “some” of her conduct was harassment, the Board made no finding that this was true of all the conduct charged against her as misconduct and proven to its satisfaction. This is not a case where each alleged act of misconduct was identified, separately, as warranting the sanction of dismissal. It was the aggregation of conduct “creating a hostile work environment over an extended period of time” which underlay the decision to dismiss. Additionally, one instance where the complainant had caused staff to cry occurred within two years of the complaint against her being lodged by the Staff Association in September 2016. Her complaint about lack of warning was directed to events over the entire preceding nine years comprehended by the charges, which events occurred, in the main, before 2014.
In the impugned decision, the Director effectively repeated this flawed analysis of the Board though, significantly, omitted the word “some” (referred to earlier) in saying that “the Board found that your conduct was ‘so clearly out of bounds that [you] could not help but know that it was improper’”. As just discussed, no such compendious finding was made by the Board in relation to all the conduct relied upon by the Director in confirming the dismissal of the complainant by rejecting her appeal. This material flaw in the analysis by the Director was compounded by her saying that the complainant’s assertion that the Director of Administration and the HRM Director “tolerated” her conduct did not provide the complainant with a defence when her actions were so obviously a violation of the Harassment Policy. This comment is not motivated save to the extent that it involved a purported adoption of what the Board had concluded. No such general conclusion had been reached by the Board […].
Keywords
misconduct; final decision; motivation; beyond reasonable doubt
Considerations 16-18
Extract:
Certainly in the case of unsatisfactory performance, the Tribunal’s case law casts a duty on the organisation to inform a staff member of their unsatisfactory performance and effectively give them a warning that their performance needs to improve otherwise there is a risk of dismissal. In Judgment 3911 the Tribunal said:
[…]
There is no bright line distinguishing or separating conduct which constitutes unsatisfactory performance and some conduct which can be characterised as misconduct. The same conduct may be both. Judgment 4540 illustrates this point. Plainly, there will be situations where conduct constituting misconduct which could not be simply characterised as unsatisfactory performance, can lead to dismissal without any warning. Obvious examples would be theft, fraud or a serious assault on a fellow staff member occasioning actual bodily harm. That is one extreme. However, in circumstances such as the present, where generally the essential complaint was about the management style of a staff member (albeit, in this case, a forceful management style characterised as harassment by the Organization), it could be expected that the person concerned would be warned or counselled that her or his management style needed to alter, perhaps even radically and quickly, and if it did not, dismissal might follow. That is particularly so if the conduct is remediable and specific aspects of the conduct are not, in isolation, egregious even if, cumulatively, they might be. As noted earlier in relation to these proceedings, this is not a case where each alleged act of misconduct was identified, separately, as warranting the sanction of dismissal. It was the aggregation of conduct “creating a hostile work environment over an extended period of time” which underlay the decision to dismiss the complainant.
Her plea that she received no warning or counselling and should have, is well founded. The decision to dismiss the complainant should be set aside.
Reference(s)
ILOAT Judgment(s): 3911, 4540
Keywords
misconduct; unsatisfactory service; warning; harassment
Consideration 19
Extract:
As with a decision to suspend (see, for example, Judgment 4452, consideration 7), the decision to place the complainant on administrative leave with pay was a discretionary decision which is subject only to limited review. Such a review is limited to questions of whether the decision was taken without authority, was 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.
Reference(s)
ILOAT Judgment(s): 4452
Keywords
administrative leave
Consideration 23
Extract:
It would not be appropriate to order reinstatement. Almost self-evidently, the necessary trust and confidence between the complainant and PAHO could not be recreated or created to sustain future employment of the complainant with the Organization (see, for example, Judgments 4456, consideration 18, 4310, consideration 13, and 3364, consideration 27). Moreover, the complainant was on a fixed-term contract (which appears to have expired in the meantime), and it is only in exceptional cases that reinstatement might be ordered in that context (see, for example, Judgment 4063, consideration 11). This case is not exceptional.
Reference(s)
ILOAT Judgment(s): 3364, 4063, 4310, 4456
Keywords
reinstatement
Consideration 24
Extract:
The complainant is entitled to moral damages. There is medical evidence about her emotional state at the time of her dismissal. She was suffering from stress, anxiety and depression. There is little room to doubt that termination in the circumstances evidenced in this case would have been stressful and even traumatic.
Keywords
termination of employment; moral damages
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