Judgment No. 4749
Decision
The complaint is dismissed.
Summary
The complainant challenges the termination of his appointment with compensation in lieu of notice.
Judgment keywords
Keywords
termination of employment; disciplinary measure; disciplinary procedure; complaint dismissed
Consideration 5
Extract:
In disciplinary matters, the Tribunal has consistently found that the burden of proof rests on an organisation to prove the allegations of misconduct beyond reasonable doubt before a disciplinary sanction can be imposed. In respect of the standard of proof, the Tribunal relevantly stated the following in Judgment 4362, considerations 7, 8 and 10:
“7. [...] The relevant legal standard is beyond reasonable doubt. 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 (see, for example, Judgment 3863, consideration 11). Part of the Tribunal’s role is to assess whether the decision-maker properly applied the standard when evaluating the evidence (see Judgment 3863, consideration 8).
8. The standard of proof of beyond reasonable doubt does not exist to create an insuperable barrier for organisations to successfully prosecute disciplinary proceedings against staff members. Indeed, it should not have that effect. What is required is discussed in many judgments of the Tribunal. Rather the standard involves the recognition that often disciplinary proceedings can have severe consequences for the affected staff member, including dismissal and potentially serious adverse consequences on the reputation of the staff member and her or his career as an international civil servant, and in these circumstances it is appropriate to require a high level of satisfaction on the part of the organisation that the disciplinary measure is justified because the misconduct has been proved. The likelihood of misconduct having occurred is insufficient and does not afford appropriate protection to international civil servants. It is fundamentally unproductive to say, critically, this standard is the ‘criminal’ standard in some domestic legal systems and a more appropriate standard is the ‘civil’ standard in the same systems involving the assessment of evidence and proof on the balance of probabilities. The standard of beyond reasonable doubt derived from the Tribunal’s case law as it has evolved over the decades, serves a purpose peculiar to the law of the international civil service.
[...]
10. [...] The standard of beyond reasonable doubt concerns both the finding of specific facts and the overall level of satisfaction that the case against the staff member has been made out. In relation to the proof of any essential relevant fact, the person or body charged with the task of assessing the evidence and making a decision in the context of determining disciplinary proceedings must be satisfied beyond reasonable doubt that a particular fact exists.”
Reference(s)
ILOAT Judgment(s): 3863, 4362
Keywords
disciplinary measure; disciplinary procedure; standard of proof; beyond reasonable doubt
Consideration 6
Extract:
[T]he Tribunal recalls that, under its settled case law, it will not interfere with the findings of an investigative body unless there is manifest error (see, for example, Judgment 4065, consideration 5) [...].
Reference(s)
ILOAT Judgment(s): 4065
Keywords
inquiry; judicial review
Consideration 6
Extract:
[A]n opinion of a disciplinary committee that rests on a balanced and thoughtful analysis and contains justified and rational conclusions and recommendations warrants considerable deference (see Judgment 3969, consideration 11).
Reference(s)
ILOAT Judgment(s): 3969
Keywords
advisory body; disciplinary procedure; judicial review
Consideration 6
Extract:
[T]he Tribunal notes that Section 2.1 of the ICC Anti-fraud Policy states that the term “fraud” means any act that knowingly attempts to mislead a party in order to obtain a financial benefit or to avoid an obligation. [...]
Insofar as the complainant admitted to having obtained the fictitious invoices and being aware that they were intended to justify the amount missing from the relevant financial account, the Tribunal is not persuaded by the complainant’s explanation that he solely intended to assist his supervisor and not to mislead the organisation. The Registrar of the Court was undoubtedly entitled to conclude beyond a reasonable doubt that the complainant intended to mislead the organisation in circumstances where the ultimate aim of the falsified invoices was precisely to justify an amount missing from the [organisation's] financial account.
[...]
[I]t is clear from the file that the complainant took steps to obtain and obtained the fraudulent invoices with the aim, which he must have known to be unlawful, of justifying fictitious services. The fact that the request to do so may have originated from his supervisor, as the complainant alleges, or that he may have stated to his supervisor that the invoices were falsified in no way alters the fact that the act constituted fraud as defined in Section 2.1 [...].
Keywords
fraud; interpretation of rules
Considerations 10-11
Extract:
In Judgment 4478, considerations 11 and 12, the Tribunal recalled that “[t]he case law confirms that the decision on the type of disciplinary action taken remains in the discretion of the disciplinary authority, as long as the measure is not disproportionate” (see also Judgment 3640, consideration 29), and that “the Tribunal cannot substitute its evaluation for that of the disciplinary authority, [as] the Tribunal limits itself to assessing whether the decision falls within the range of acceptability” (see also on this point Judgment 3971, consideration 17). In Judgment 4478, the Tribunal further observed that, although a lack of proportionality must be seen as an error of law warranting the setting aside of a disciplinary measure, “[i]n determining whether disciplinary action is disproportionate to the offence, both objective and subjective features are to be taken into account and, in the case of dismissal, the closest scrutiny is necessary”. However, in Judgment 2699, consideration 15, the Tribunal emphasized that it will accord a high degree of deference to decisions concerning sanctions where the misconduct relates to issues of dishonesty, misrepresentation and a lack of integrity (see also on this point Judgment 4308, consideration 18).
In the present case, the Tribunal notes that the sanction imposed on the complainant, although severe, was not the most serious disciplinary measure provided for in the ICC Staff Rules, which is summary dismissal for serious misconduct. Moreover, the aforementioned provisions specifically placed the complainant under duties of probity and honesty, and it is plain from the submissions and the evidence that his role in the Victims and Witnesses Section of the Registry of the Court in Côte d’Ivoire entailed the obligation to demonstrate irreproachable integrity and to conduct himself with the highest probity when, inter alia, providing proof of expenditure chargeable to the organisation. However, the complainant’s submission of falsified invoices that he himself had acquired for the purpose of providing proof of official expenditure directly undermined the trust essential to his continued relationship with the Organisation. The Tribunal therefore finds that, despite its severity, the sanction imposed was not disproportionate [...].
Reference(s)
ILOAT Judgment(s): 2699, 3971, 4308, 4478
Keywords
proportionality; disciplinary measure; disciplinary procedure; fraud
Consideration 12
Extract:
As regards the fact that the complainant had not been involved in any other incident since he joined the ICC, which could usually constitute a mitigating circumstance, it is clear from the impugned decision that the Registrar of the Court did take this into account. Similarly, the Registrar did consider the complainant’s argument that the sums involved were relatively small and that the offending conduct had not resulted in the organisation incurring any financial loss. However, these mitigating circumstances in fact carried little weight in view of the gravity of the misconduct. Moreover, even if the fact that the complainant had acted, as he submits, at his supervisor’s instigation were to be regarded as a mitigating circumstance, this would not lead to the misconduct being considered less serious.
Keywords
proportionality; mitigating circumstances; disciplinary measure; fraud
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