Judgment No. 4753
Decision
The complaint is dismissed.
Summary
The complainant challenges the decision to place on his personnel file a letter notifying him that he had committed serious misconduct for which he would have been summarily dismissed had he not separated from the IAEA, and to relevantly inform all affected individuals.
Judgment keywords
Keywords
joinder; identical facts; personal file; flaw; administrative decision; investigation; complaint dismissed
Consideration 3
Extract:
Plainly the Tribunal can, and often does, consider related complaints at the same session and by the same panel of judges. The joinder of two complaints is a legal device deployed by the Tribunal in order that one judgment can be rendered, and orders then made disposing of the joined complaints. When considering the scope and purpose of a joinder, it must be borne in mind that while such an order can be made in relation to multiple complaints by one complainant, they can also be made in relation to complaints by two or more individuals who, in substance, raise the same grievance. This latter situation illustrates the need for such orders to be made only in quite explicit circumstances and to be guided by focused principles and not loosely expressed generalities. This is particularly important given the res judicata effect of the Tribunal’s judgments. It would be wrong, in principle, to burden one individual with the legal outcome of proceedings where her or his complaint has been joined with the complaints of others in which legal issues have arisen and are resolved, but not legal issues raised by that individual.
Keywords
finality of judgment; joinder; identical facts; judgment of the tribunal; order
Considerations 6-7
Extract:
The question that arises is whether it is appropriate to join the two complaints. The touchstone for formal joinder has historically been that the complaints involve the same or, more recently, similar questions of fact and law, and it is not sufficient that they stem from the same continuum of events. A recent example is Judgment 4600, consideration 2. In that case, no joinder was ordered, notwithstanding that the complaints, the joinder of which was sought, concerned the same continuum of events. If the complaints concern the same or similar questions of fact and law, then it is probable that the same or related orders will be made dispositive of the several complaints.
In the present case, notwithstanding the linkage discussed earlier, the ultimate legal issues are quite different. At base, the first complaint requires a consideration of the legality of placing the letter of 17 December 2020 on the complainant’s personnel file. Any orders made, will address that question, unless the complaint is dismissed. At base, the second complaint addresses a different issue, namely the lawfulness of the decision to close the complainant’s harassment complaint, and again, any orders made, will address that question, unless the complaint is dismissed. Therefore, the two complaints will not be joined to form the subject of a single judgment, though they will be considered at the same session by the same panel of judges.
Reference(s)
ILOAT Judgment(s): 4600
Keywords
joinder; identical facts; judgment of the tribunal
Consideration 8
Extract:
Ordinarily, a document addressing a staff member’s performance or conduct can, appropriately, be placed on the staff member’s personnel file. However, if the document is legally flawed, an order could be made requiring its removal (see, for example, Judgment 3997, consideration 8). In the present case, the letter of 17 December 2020 might arguably be legally flawed, if there was a flawed process of investigation.
Reference(s)
ILOAT Judgment(s): 3997
Keywords
order; personal file; conduct; flaw; administrative decision; investigation
Consideration 10
Extract:
It should be observed […] that the Tribunal generally defers to the findings by internal investigative bodies. For example, in Judgment 4237, consideration 12 (recently cited in Judgment 4674, consideration 5), the Tribunal said:
“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).”
Reference(s)
ILOAT Judgment(s): 3593, 3682, 3757, 4237, 4674
Keywords
deference; evidence during investigation; investigative body; role of the tribunal
Consideration 14
Extract:
The complainant has not established that the investigation and findings of the OIOS in relation to the group complaint against him were legally flawed. Accordingly, there is no basis for concluding that the decision to place the letter of 17 December 2020 on the complainant’s personnel file was infected by legal error. Consequentially, there is no basis for ordering that the letter be removed from the complainant’s personnel file.
Keywords
order; personal file; flaw; mistake of law; administrative decision; investigation
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