Judgment No. 5122
Decision
1. The impugned decision of 11 April 2022 and the initial decision contained in the letter of 7 February 2020 are set aside.
2. The OPCW shall pay the complainant 20,000 euros in moral damages.
3. The OPCW shall also pay the complainant 2,000 euros in costs.
4. All other claims are dismissed.
Summary
The complainant challenges the decision to impose upon him the disciplinary measure of written censure and to bar him from any future employment with the OPCW for alleged breaches of his confidentiality obligations.
Judgment keywords
Keywords
complaint allowed; disciplinary measure; breach of confidentiality
Consideration 3
Extract:
[C]onsistent precedent has it that decisions which are made in disciplinary cases are within the discretionary authority of the executive head of an international organization and are subject to limited review. The Tribunal will interfere only if the decision is tainted by a procedural or substantive flaw. Moreover, where there is an investigation by an investigative body in disciplinary proceedings, the Tribunal’s role is not to reweigh the evidence collected by it, as 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, for example, Judgments 4343, consideration 4, 4106, consideration 12, and 3872, consideration 2). The case law also states, in relation to the question of whether the alleged conduct took place, that the burden of proof rests on an organisation to prove allegations of misconduct beyond a reasonable doubt before a disciplinary sanction can be imposed (see, for example, Judgments 4749, consideration 5, 4227, consideration 6, and 3862, consideration 20).
Reference(s)
ILOAT Judgment(s): 3862, 3872, 4106, 4227, 4343, 4749
Keywords
decision; burden of proof; disciplinary measure; judicial review; discretion; executive head; limits; standard of proof; manifest error; investigation; investigative body; beyond reasonable doubt; role of the tribunal
Consideration 17
Extract:
[U]nder the Tribunal’s case law, a complainant has no general right to legal representation in all circumstances during an investigation (see, for example, Judgment 2589, consideration 7). Moreover, there was no rule that mandated that a subject of an investigation was entitled to legal representation therein.
Reference(s)
ILOAT Judgment(s): 2589
Keywords
right; rules of the organisation; investigation; legal assistance
Consideration 23
Extract:
[T]here was a requirement to observe due process at the disciplinary stage prior to the imposition of any sanction upon the complainant. Notably, Rule 10.2.03 of the OPCW Staff Regulations and Interim Staff Rules, then in force, under the heading “Due process”, stated, in effect, that no disciplinary proceedings may be instituted against a staff member unless he or she had been notified of the allegations against him or her, as well as the right to seek assistance in his or her defence, as well as be given a reasonable opportunity to respond to those allegations. These steps were not taken before the Director-General issued the disciplinary measures against the complainant in the letter of 7 February 2020 to the extent that the complainant was not provided with the charges. He was also not provided with a copy of the full investigation report, as was required by paragraph 1.18 of Part IX of the Policy on Confidentiality. The complainant’s right to due process before those measures were imposed upon him was thereby violated.
Keywords
disclosure of evidence; due process; patere legem; disciplinary measure; disciplinary procedure; right; rules of the organisation; legal assistance; notification of allegations; investigation report; disciplinary charges
Consideration 24
Extract:
The violation of the complainant’s due process in the disciplinary process was a manifest error, which permits the Tribunal to set aside the impugned decision, as well as the initial decision contained in the letter of 7 February 2020, without it being necessary to rule on any other plea the complainant proffers. Inasmuch as the complainant’s rights to due process were violated, he is entitled to moral damages. For this, in the circumstances of this case, the Tribunal will award him 20,000 euros.
Keywords
due process; patere legem; disciplinary procedure; judicial review; moral damages; manifest error; role of the tribunal
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