Suspension without pay (942,-666)

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Keywords: Suspension without pay
Total judgments found: 4

• Judgment 4586

  
  135th Session, 2023
  International Organization for Migration
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant contests the decision to convert his suspension with pay into a suspension without pay pending an investigation for misconduct against him, as well as the overall length of his suspension.

  Judgment keywords

  Keywords:

  complaint allowed; suspension without pay;
  

  Consideration 11

  Extract:

  In assessing whether the decisions to suspend without pay were unlawful having regard to the terms of Rule 10.3, three matters should be noted at the outset. The first is that there was not one decision to suspend without pay but, as the complainant contends, multiple decisions. They were made on 26 March 2019, 26 June 2019, 23 July 2019, 26 September 2019, 16 December 2019, 18 March 2020 and 18 May 2020. Whether each, some or none of these decisions were legally flawed having regard to the principles discussed in consideration 8 [of this judgment] can be assessed by reference to the circumstances existing at the time each decision was made.

  Keywords:

  suspension without pay;
  

  Consideration 14

  Extract:

  The reasons given for the suspension without pay from 26 March 2019, and in effect the reason for transforming the suspension as one with pay to one without pay, was [...] that: “[t]he various interviews that have been conducted by OIG, including with you, and the strong evidence gathered thus far in the course of the investigation have reinforced the credibility of the allegations raised against you” and later: “the elements gathered by OIG [...] reinforce[d] the credibility of the allegations raised against you”. The letter of 26 March 2019 does not refer to the requirement in the rules that suspension without pay can only occur if the Director General (or a person acting on delegation) considers there are exceptional circumstances. But it can reasonably be inferred that the additional elements just quoted were viewed as constituting exceptional circumstances. The legal question which then arises is whether it was reasonably open to the decision-maker to form that opinion. The word “exceptional”, in this context, denotes circumstances which are beyond, and probably well beyond, circumstances which might simply justify suspension with pay. But apart from that, the expression “exceptional circumstances” is an expression of great width. It must be borne in mind that the power to suspend does not simply arise in circumstances where allegations of serious misconduct are being investigated or pursued in disciplinary proceedings (as it does in some other organisations’ rules). The power to suspend as expressly conferred by IOM’s rules can be exercised in relation to any conduct which might lead to a disciplinary sanction which could include alleged minor transgressions. But, of course, questions of proportionality can arise as discussed in consideration 8 [...]. Moreover, under Rule 10.3(d) a person suspended without pay is entitled to receive pay withheld if the allegations against the staff member were not substantiated or later found not to warrant summary dismissal. In this respect, the Rule itself ameliorates what otherwise might be viewed as the severe effect of suspension without pay. What, in substance, the letter of 26 March 2019 was saying was that the case against the complainant involving the receipt of corrupt payments of approximately 600,000 United States dollars (and solicited by him) was one where there was a much-increased measure of certainty, in the eyes of the Organization, that in fact corrupt payments in this amount had been received. If proved it would be a gross misconduct of the most egregious kind and almost certainly criminal behaviour. The decision-maker was entitled, in the Tribunal’s view, to treat the highly likely fact that the complainant had received corrupt payments in this amount solicited by him, as giving rise to exceptional circumstances in all the circumstances.

  Keywords:

  motivation; motivation of final decision; suspension without pay;
  

  Consideration 15

  Extract:

  However, as time passed, other considerations bore upon the issue of whether the complainant could reasonably be suspended without pay. It should be noted that all subsequent letters suspending the complainant without pay for a further period do not add to, or alter, the reasons given in the letter of 26 March 2019. One such consideration was that the suspension without pay was made in circumstances where, as required by the original decision of 4 October 2018, the complainant could not leave his duty station. He says in his pleas, and this is not really challenged, this limited his capacity to obtain income from other sources. Whether he could engage in other employment as a member of staff of IOM (albeit suspended), is problematic. Nonetheless, what is undoubtedly true is that having no income as a staff member diminished the complainant’s capacity to support his family even allowing for the possibility that he had retained some or all the money alleged to have been received as bribes. Another consideration is that the investigation by the OIG finally concluded, by the issuing of a report, in April 2020. Its report suggests that its active pursuit of the investigation concluded sometime shortly after mid-March 2020 when the complainant responded to the OIG’s draft investigation report of January 2020. At least, by that point, there could be no suggestion of the complainant interfering with the investigation, thus removing one of the foundational elements of the initial decision to suspend as well as the initial decision to suspend without pay. The Organization’s failure to take into account the ongoing economic impact on the complainant together with, more importantly, the matter discussed in the preceding sentence, tainted its decisions to suspend the complainant without pay made on 18 March 2020 and 18 May 2020 and they should be set aside to the extent that they suspended the complainant without pay.

  Keywords:

  suspension without pay;
  

  
  
  

• Judgment 4519

  
  134th Session, 2022
  International Telecommunication Union
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the decision to suspend her without pay.

  Consideration 14

  Extract:

  The Tribunal observes that the conversion of the initial suspension with pay – which, in the light of the evidence, was in itself entirely legitimate – into a suspension without pay did not have the effect of significantly exacerbating the damage already inevitably done to the complainant’s professional reputation, since, when a member of staff is suspended, that damage arises primarily from the very fact that she or he is removed from duty. However, the sudden and prolonged loss of all pay resulting from that measure was bound to cause the complainant severe anxiety and hardship. Moreover, the unreasonable length of the suspension, considered as a whole, had the effect of keeping the complainant in a protracted state of uncertainty about her professional future, which was especially difficult since she was responsible for a child.

  Keywords:

  moral injury; suspension without pay;
  

  Judgment keywords

  Keywords:

  complaint allowed; suspension without pay;
  

  Consideration 9

  Extract:

  The Tribunal [...] observes that a total of 15 months elapsed between the start of the complainant’s suspension, on 1 May 2020, and the end of the suspension, which in this case coincided with the date on which her dismissal took effect, namely 31 July 2021. That is an unreasonably long time. It not only grossly exceeded the aforementioned three-month period, but also disregarded the inherently short-term nature of such a suspension (see, for comparable cases, abovementioned Judgment 2698, consideration 14, or Judgment 3035, consideration 18). This duration, which can largely be explained by the likewise unusually slow disciplinary procedure, is all the more egregious in the present case because the complainant was deprived of any professional income from 10 November 2020, that is to say for most of the period in question.

  Reference(s)

  ILOAT Judgment(s): 2698, 3035
  

  Keywords:

  injury; suspension without pay;
  

  Consideration 8

  Extract:

  [T]he complainant submits that the conversion of her initial suspension into a suspension without pay breached the requirement of Staff Rule 10.1.3(b) that a suspension “should normally not exceed three months”.
  [...]
  Admittedly, as ITU points out, the three-month limit is merely a guideline. It is not mandatory as it applies only “normally” and a suspension may well be longer in certain cases. Nevertheless, if the provision in question is not to be rendered meaningless, it cannot be considered that the Organisation may disregard the objective of complying with this maximum guideline period without restriction or justification.

  Keywords:

  suspension without pay;
  

  Consideration 11

  Extract:

  The confirmation in the investigation report that the allegations against the complainant were substantiated does not, in itself, constitute a relevant new fact. It had no bearing on the nature of the misconduct of which the complainant was accused and could not therefore allow the circumstances of the case to be treated as exceptional when they had not been before. Moreover, it should be observed that the findings of the investigation in question merely corroborated the view that the ITU authorities must be deemed to have held when the initial decision was taken to suspend the complainant with pay as, under Staff Rule 10.1.3(a), the Secretary-General may suspend a staff member only “if [she or he] or the Director of the Bureau concerned is of the opinion that the charge is well-founded”, and that is a prerequisite for a measure of this type to be lawful (see, for example, Judgment 2892, consideration 14).
  In considering that [...] he could convert the initial suspension with pay into a suspension without pay in the light of the findings of the investigation, the Secretary-General therefore committed an error of law w, in addition to those already criticised [...].

  Reference(s)

  ILOAT Judgment(s): 2892
  

  Keywords:

  suspension without pay;
  

  
  
  

• Judgment 4515

  
  134th Session, 2022
  International Telecommunication Union
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant challenges the conversion of his suspension with pay into a suspension without pay pending an investigation for harassment undertaken against him.

  Judgment keywords

  Keywords:

  complaint allowed; patere legem; suspension without pay;
  

  
  
  

• Judgment 4452

  
  133rd Session, 2022
  World Tourism Organization
  Extracts: EN, FR
  Full Judgment Text: EN, FR
  Summary: The complainant contests the decisions to suspend him with pay and then without pay during the disciplinary procedure for misconduct as well as the appointment of a colleague to what he describes as his “job and functions”.

  Considerations 6-7

  Extract:

  The power to suspend is enlivened when the Secretary-General considers, in the specified circumstances, that continuation in service of the official may prejudice the service. The power is founded on the opinion of the Secretary-General on the question of prejudice. It is tolerably clear that a decision to suspend without salary when there might be summary dismissal, is linked to the power to make the summary dismissal retroactive to the date of suspension. The rationale appears to be that if retroactive summary dismissal is the ultimate outcome, circumstances should not be created where the suspended official has been paid but for a period when he was not in employment, at least notionally, and recovery of that payment may be problematic.
  When the complainant was suspended with pay […], the approach of the Secretary-General was, on its face, quite orthodox and in conformity with Staff Rule 29. First, the Secretary-General said that a sanction was being considered and identified it as summary dismissal. Notwithstanding, a decision was not then made though it could have been, to suspend the complainant without pay. Secondly the Secretary-General addressed the question of prejudice and gave a rational explanation why the interests of the service may be prejudiced if the complainant continued in service.

  Keywords:

  discretion; suspension; suspension without pay;
  

  Considerations 9 & 11

  Extract:

  This leads to a consideration of whether the decision […] to suspend the complainant without pay was lawful. It was not. […]
  
  [The arguments invoked by the Secretary-General] reveal, at the very least, considerable irritation at the complainant’s conduct. But whether or not it was justified is, for the purposes of the present discussion, irrelevant. [T]he discretionary power to suspend depends on an opinion that the continuation in service of the official may prejudice the service. That assessment had already been made on 4 May 2018. Moreover, at that time and with full knowledge that the ultimate sanction may be summary dismissal, an election was plainly made by the Secretary-General not to suspend without pay. All that had occurred in the intervening period was that the complainant conducted himself in a way that attracted very firm criticism by the Secretary-General. It was the criticism of the conduct that, in the main, was comprehended by the expression “[i]n view of the above” identifying the reason or reasons for the decision to suspend without pay. It is tolerably clear that the alteration of the terms of the suspension was simply a sanction for the criticised conduct. That provided no lawful basis for that decision. The decision to suspend without pay should be set aside.

  Keywords:

  suspension without pay;
  

  Consideration 15

  Extract:

  The complainant would, in the ordinary course, be entitled to material damages being the income he would have received from the date of suspension without pay until the date of his dismissal, if lawful.

  Keywords:

  material injury; suspension without pay;
  

  Judgment keywords

  Keywords:

  complaint allowed; disciplinary procedure; misconduct; suspension without pay;
  

  Consideration 16

  Extract:

  The complainant also seeks additional moral damages and exemplary damages. These damages are sought on the basis of “the emotional and financial stress placed on [the complainant] and his family [...] and as [the unlawful decisions] severely injured his professional reputation and dignity”. There is no obvious relationship, nor any proved, between the matters just referred to and the unlawful suspension without pay for approximately two and a half months being the period between the time of the decision to suspend without pay and the time of the decision to dismiss. No moral or exemplary damages are warranted.

  Keywords:

  exemplary damages; moral injury; suspension without pay;