Judgment No. 4835
- Organization: International Federation of Red Cross and Red Crescent Societies (IFRC)
- Date: 08.07.2024
- Original: English
- Judges: Frydman, Moore, Rawlins, Jaumotte, Gascon, De Nictolis, Shen
- Full judgment text - Full judgment text (french)
Decision
1. The impugned decision of 23 August 2021 is set aside.
2. The Federation shall pay the complainant 15,000 Swiss francs in moral damages for the procedural flaw in the internal appeal procedure.
3. It shall also pay him 10,000 Swiss francs in costs.
4. All other claims are dismissed.
Summary
The complainant challenges the decision to rescind an offer of employment that had been extended to him, on the basis that he had been disciplined for sexual misconduct.
Judgment keywords
Keywords
complaint allowed; offer withdrawn; disciplinary measure; sexual harassment
Consideration 2
Extract:
[T]he Tribunal has consistently stated, in consideration 7 of Judgment 4412, for example, that the appointment by an international organization of a candidate to a position is a decision that lies within the discretion of its executive head. It is subject to limited review and may be set aside only if it was taken without authority, or in breach of a rule of form or procedure, or if it was based on a mistake of fact or of law, or if some material fact was overlooked, or if there was abuse of authority, or if a clearly wrong conclusion was drawn from the evidence.
Reference(s)
ILOAT Judgment(s): 4412
Keywords
appointment; offer withdrawn; judicial review; discretion
Considerations 4-6
Extract:
[T]he complainant submits, in substance, that the Appeals Commission prevented him from attending the hearing of the witnesses it called to permit him to test the evidence, and, in any event, that he was not even provided with the statements of such witnesses […] The Federation relies on Judgment 4408, where the Tribunal concluded, in consideration 4, that an interview conducted as an “investigative measure” to enable an appeal body to obtain general information not relating specifically to the situation of the complainant was not a hearing where the complainant was required to be present or where the content of the discussion had to be disclosed to him or her […] It is obvious […] that the Commission interviewed these Federation staff on various issues which touched and concerned “the circumstances in which the offer was rescinded”. This tends to demonstrate that the information sought by the Commission was not of a general nature, and that it was relating specifically to the rescission of the offer of employment at issue. In these circumstances, the Tribunal considers that the complainant had a right, at least to have been apprised of the content of the interviews and to provide his comments if he so wished. Since this was not done, the complainant’s right to be heard was violated […] For this, which is an infringement of due process, he will be awarded 15,000 Swiss francs.
Reference(s)
ILOAT Judgment(s): 4408
Keywords
internal appeals body; internal appeal; oral proceedings; due process; internal procedure; moral damages; right to be heard; witness
Considerations 8-10
Extract:
At the time when the […] rescission decision was made, the complainant had been sanctioned twice for breaches of the Code of Conduct and Anti-Harassment Guidelines. Before the 1 May 2020 final letter of warning which was eventually set aside, the complainant had received, on 29 July 2019, a first warning letter, following a preliminary assessment which concluded that he “had failed to accept a female subordinate’s repeated requests to end their personal relationship and had continued to make unwanted contact attempts of a personal or intimate nature, which appeared to have made the female subordinate in question uncomfortable and to have created an offensive working environment.” Therefore, the mention of “reference checks [...] [which] revealed that [the complainant] ha[d] been sanctioned for sexual misconduct” in the […] rescission decision can be regarded as covering the 29 July 2019 warning letter issued to the complainant, which alone provided a sufficient legal basis for IFRC to decide to rescind the conditional employment offer that had been extended to him on 26 June 2020. […] The complainant’s argument […] that a warning letter cannot be used to rescind an employment offer since it is “the second least serious disciplinary sanction open to the Secretary General” is also unfounded. The Tribunal considers that the complainant’s conduct underlying the 29 July 2019 warning letter is likely to have compromised the trust between him and the Federation, regardless of the type of disciplinary measure which was ultimately imposed […] [T]he Federation withdrew the conditional offer of employment based on a reference check revealing that the complainant had been sanctioned for sexual misconduct, which it was entitled to do as part of the exercise of its discretionary power.
Keywords
appointment; offer withdrawn; conduct; disciplinary measure; discretion; sexual harassment
Consideration 10
Extract:
The complainant bears the burden of establishing retaliation (see Judgment 4357, consideration 9) and he has not done so.
Reference(s)
ILOAT Judgment(s): 4357
Keywords
burden of proof; retaliation
Consideration 11
Extract:
There are however no bases on which to accept the complainant’s claim for exemplary damages, which are only warranted in exceptional circumstances that are not evident in this case.
Keywords
exemplary damages
Consideration 11
Extract:
The complainant’s claim to be awarded such other redress as the Tribunal deems necessary, just and fair should be rejected as it is too vague to be receivable (see, for example, Judgment 4602, consideration 8).
Reference(s)
ILOAT Judgment(s): 4602
Keywords
formal requirements
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