Judgment No. 4697
Decision
1. The decision of the Director General of 12 October 2021 and that of 27 March 2020 are set aside.
2. Eurocontrol shall reimburse the complainant for all the sums withheld from his pension since 1 April 2020 pursuant to those decisions, on the terms set out in consideration 25 of the judgment.
3. The Organisation shall also 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 Director General’s decision to impose on him the disciplinary sanction of downgrading.
Judgment keywords
Keywords
complaint allowed; disciplinary procedure
Consideration 1
Extract:
The Tribunal notes that, pursuant to the last sentence of Article 92(2) of the Staff Regulations, an implied decision rejecting the complainant’s internal complaint, challengeable before the Tribunal, arose on the expiry of four months from the date on which that internal complaint was lodged, namely on 29 September 2020. Therefore, on 17 December 2020, the date on which the complainant filed his complaint with the Tribunal, the internal means of redress available to him had been exhausted.
The complaint is therefore receivable.
Keywords
receivability of the complaint
Consideration 2
Extract:
In view of the fact that, subsequent to the complainant filing his complaint and his rejoinder, the Joint Committee for Disputes delivered its opinion on 6 October 2021 on his internal complaint of 29 May 2020 and the Director General made an express decision on 12 October 2021 rejecting that internal complaint, the complainant also impugns that decision in his further submissions.
Since the parties have had ample opportunity to comment in their submissions on that express decision rejecting the complainant’s internal complaint of 29 May 2020, the Tribunal considers it appropriate to treat the complaint as being directed against that decision.
Keywords
impugned decision
Consideration 3
Extract:
The complainant requests an oral hearing. However, the Tribunal considers that the parties have presented sufficiently extensive and detailed submissions and documents to allow it to be properly informed of their arguments and the relevant evidence. The request for an oral hearing is therefore dismissed.
Keywords
oral proceedings
Consideration 4
Extract:
The complainant also asks that this complaint be joined to his fourth complaint in which he seeks the setting aside of the decision concluding that some of his absences were unjustified, since he considers that the two complaints rest on the same facts. The Organisation opposes this. Given that the two complaints involve different impugned decisions, different opinions of the Joint Committee for Disputes, and provisions of the Staff Regulations governing officials of the Eurocontrol Agency which are not entirely the same, the Tribunal considers it appropriate to deal with the two cases separately and to render a separate judgment for each of them. Accordingly, the complaints will not be joined.
Keywords
joinder
Consideration 5
Extract:
In the context of the present case, the Tribunal considers that the Director General of the Organisation could only depart from the unanimous opinions of the Disciplinary Board and the Joint Committee for Disputes for clear and cogent reasons (see Judgment 4504, consideration 10).
Reference(s)
ILOAT Judgment(s): 4504
Keywords
motivation
Consideration 11
Extract:
Established precedent of the Tribunal has it that before adopting a disciplinary measure, an international organisation must give the staff member concerned the opportunity to defend herself or himself in adversarial proceedings (see, for example, Judgment 3875, consideration 3). This is to ensure that the staff member is afforded the opportunity to fully express her or his point of view, with the aim of being properly heard. In Judgment 4408, consideration 4, the Tribunal reiterated the importance of these principles as follows:
“4. The Tribunal points out that respect for the adversarial principle and the right to be heard in the internal appeal procedure requires that the official concerned be afforded the opportunity to comment on all relevant issues relating to the contested decision and, in particular, on all the organisation’s arguments (see Judgment 2598, consideration 6).”
Reference(s)
ILOAT Judgment(s): 2598, 3875, 4408
Keywords
disciplinary procedure; due process in disciplinary procedure
Consideration 12
Extract:
The Tribunal’s case law [...] establishes that, in disciplinary matters, the official’s right to due process means that an organisation has an obligation to prove the misconduct complained of beyond reasonable doubt. This serves a purpose peculiar to the law of the international civil service and involves the recognition that often disciplinary proceedings can have severe consequences for the official concerned (see, for example, Judgments 4478, consideration 10, 4362, considerations 7, 8 and 10, and 4360, consideration 10).
Reference(s)
ILOAT Judgment(s): 4360, 4362, 4478
Keywords
disciplinary procedure; standard of proof; beyond reasonable doubt
Considerations 14-15
Extract:
The Tribunal considers that it is clear from these provisions, which are peculiar to Eurocontrol’s Staff Regulations, that officials of the Organisation are entitled to a due process which affords them the opportunity to be fully heard in connection with the misconduct of which they are accused and to a genuine opportunity to express themselves on the “penalty envisaged” in terms both of its content and of its proportionality to the facts complained of.
In the present case, bearing in mind that the Director General had the ability to apply a large range of disciplinary measures which had to be commensurate with the facts complained of and which had potentially significant consequences for the complainant depending on the severity of the penalty decided upon, the Tribunal considers that the provisions required the complainant to be given the opportunity to make observations on the penalty envisaged by the Director General before that penalty was imposed.
[...]
The Tribunal considers that the Organisation therefore breached its own disciplinary rules and substantially undermined the complainant’s right to be heard under the Staff Regulations in order to put forward his comments on the penalty envisaged against him. This breach of the rules was all the more serious that the penalty in question was significant and had severe consequences for the complainant, as downgrading by two grades brought with it an immediate and permanent reduction by almost 20 per cent of the amount of his pension.
Keywords
patere legem; disciplinary procedure; right to be heard
Consideration 21
Extract:
[A]ccording to the settled case law of the Tribunal, the level of proof to which the Organisation is subject in disciplinary matters is proof beyond reasonable doubt (see, for example, Judgments 4478, consideration 10, and 4247, considerations 11 and 12) [...].
Reference(s)
ILOAT Judgment(s): 4247, 4478
Keywords
standard of proof; beyond reasonable doubt
Consideration 22
Extract:
In Judgment 4491, consideration 19, the Tribunal recalled that “[a] staff member accused of wrongdoing is presumed to be innocent and is to be given the benefit of the doubt”. Similarly, in Judgment 3969, consideration 16, the Tribunal reiterated that, when the executive head of an organisation seeks to motivate his conclusions and decision for departing from the conclusions of a Disciplinary Committee, she or he must establish beyond a reasonable doubt the conduct or behaviour of which a complainant is accused. Lastly, in Judgment 4047, consideration 6, the Tribunal recalled that it is equally well settled that the “Tribunal will not engage in a determination as to whether the burden of proof has been met, instead, the Tribunal will review the evidence to determine whether a finding of guilt beyond a reasonable doubt could properly have been made by the primary trier of fact”.
In the present case, the Tribunal considers it entirely apparent, as was also noted in the unanimous opinions of the Disciplinary Board and the Joint Committee for Disputes, that the Administration could not have found the complainant to be guilty beyond reasonable doubt of the alleged breaches of the provisions of the Staff Regulations relied on.
Reference(s)
ILOAT Judgment(s): 4047, 4491
Keywords
burden of proof; presumption of innocence; benefit of doubt; disciplinary measure; disciplinary procedure; judicial review
Consideration 23
Extract:
In light of these factors, the Tribunal considers that it was not possible for the Director General to depart from the unanimous opinions of the Disciplinary Board and the Joint Committee for Disputes in the way he did. The grounds he gave in the contested decisions do not meet the standard of a clear and cogent demonstration of the Organisation’s ability to conclude beyond reasonable doubt that the complainant was guilty.
Keywords
motivation; standard of proof; beyond reasonable doubt
Consideration 24
Extract:
[W]ith regard to the complainant’s [...] plea, that the sanction imposed was unlawful and disproportionate, the Tribunal recalled, in its Judgment 4504, consideration 11, that “[l]ack of proportionality is to be treated as an error of law warranting the setting aside of a disciplinary measure even though a decision in that regard is discretionary in nature. In determining whether disciplinary action is disproportionate to the offence, both objective and subjective features are to be taken into account (see Judgment 4478, consideration 11, and the case law cited therein).”
Reference(s)
ILOAT Judgment(s): 4478, 4504
Keywords
proportionality; disciplinary measure
Consideration 26
Extract:
As regards the complainant’s claim for the award of 50,000 euros in moral damages, it is well established in the Tribunal’s case law, firstly, that international organisations are bound to refrain from any type of conduct that may harm the dignity or reputation of their staff members and that the general principle of good faith and the concomitant duty of care require them to treat their staff with due consideration in order to avoid causing them undue injury (see, for example, Judgment 4559, consideration 10). Secondly, settled case law also holds that internal appeals must be conducted with due diligence and in a manner consistent with the duty of care an international organisation owes to its staff members (see Judgment 4178, consideration 15).
Reference(s)
ILOAT Judgment(s): 4178, 4559
Keywords
moral injury; internal appeal; good faith; organisation's duties; duty of care
Consideration 26
Extract:
it is true that, in his submissions, the complainant provides only succinct arguments to justify the alleged moral injury. Nonetheless, the Tribunal notes, in view of the submissions and evidence on file, that the complainant undoubtedly suffered considerable moral injury as a result of the rather arbitrary way in which he was treated, the infringement of his rights caused by the lack of prior information about the sanction imposed on him and the particularly harsh remarks made about him by the Director General.
Furthermore, the complainant was notified of the Director General’s final decision rejecting his internal complaint on 12 October 2021, more than 16 months after he had lodged his internal complaint on 29 May 2020. The Tribunal considers that this delay, which significantly exceeds the four-month period provided for in Article 92(2) of the Staff Regulations, was excessive and unreasonable in the circumstances of the case.
The Tribunal considers that all of the moral injury suffered may be fairly redressed by awarding the complainant compensation of 25,000 euros.
Keywords
moral injury; damages; delay in internal procedure
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