Judgment No. 4764
Decision
The complaint is dismissed.
Summary
The complainant contests the decision to dismiss her for misconduct.
Judgment keywords
Keywords
competence of tribunal; misconduct; disciplinary measure; complaint dismissed
Consideration 2
Extract:
One matter arising from the complainant’s pleas […] concerns the decision to place her “on administrative leave” in March 2018 which she challenges in her complaint. The legality of the suspension decision was not challenged at the time. Any grievance about that decision should have been raised then (see, for example, Judgment 4461, consideration 5). The [Global Board of Appeal] concluded, correctly, that the claims in the internal appeal, insofar as they related to the suspension decision, were irreceivable as time-barred. Accordingly, insofar as the legality of the suspension decision is challenged in these proceedings, the challenge is irreceivable because the complainant has not exhausted internal means of redress, a matter the Tribunal can consider ex officio (see, for example, Judgment 4597, consideration 8).
Reference(s)
ILOAT Judgment(s): 4461, 4597
Keywords
receivability of the complaint; competence of tribunal; failure to exhaust internal remedies
Consideration 7
Extract:
[T]he 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 [Global 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 [Global 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): 3593, 3682, 3757, 4237
Keywords
internal appeal; evidence; disciplinary procedure; investigation
Consideration 13
Extract:
In relation to the question of whether conduct founding a disciplinary measure has been proved beyond reasonable doubt and what evidence the Tribunal considers, it has said its role is a limited one, as described in Judgment 4362, consideration 7:
“The role of the Tribunal in a case such as the present is not to assess the evidence itself and determine whether the charge of misconduct has been established beyond reasonable doubt but rather to assess whether there was evidence available to the relevant decision-maker to reach that conclusion [...]”
Plainly enough that role does not require, indeed contemplate, further evidence to be furnished in the proceedings before the Tribunal. The touchstone for error in this regard concerns the evaluation of the evidence by the relevant decision-maker, namely the evidence before him or her.
Reference(s)
ILOAT Judgment(s): 4362
Keywords
competence of tribunal; evidence; disciplinary measure; standard of proof
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