Judgment No. 4770
Decision
The complaint is dismissed.
Summary
The complainant challenges the decision to dismiss him for misconduct.
Judgment keywords
Keywords
termination of employment; disciplinary measure; complaint dismissed
Consideration 6
Extract:
According to the Tribunal’s case law, the cross-examination of witnesses is not a requirement for the lawfulness of the investigation and the disciplinary proceedings, provided that due process be ensured by other means. In the present case, the Tribunal is satisfied that due process was respected, despite the fact that the complainant had no opportunity to cross-examine the witnesses. Indeed, he was informed of the precise allegations made against him and was provided with the verbatim records of the statements of the witnesses. He was thus able to confront and test the evidence, even though he was not present when the statements were made and was not able to cross-examine the witnesses who made them. Moreover, the investigation relied not only on the statements rendered by three witnesses, but also on documentary evidence.
Keywords
due process; disciplinary procedure; witness; investigation
Consideration 14
Extract:
[I]t must be recalled that, according to the Tribunal’s case law, a practice cannot become legally binding where, as in the present case, it contravenes specific rules which are already in force (see, for example, Judgment 4555, consideration 11, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 4555
Keywords
practice; binding character
Consideration 18
Extract:
[I]n the present case, since the complainant’s actions could constitute misconduct, the proper procedure to be followed was the disciplinary one, which best safeguarded his right of defence, even though his conduct could also be regarded as showing unsatisfactory performance.
Keywords
misconduct; unsatisfactory service; disciplinary procedure
Consideration 20
Extract:
The Tribunal’s well-settled case law has it that the choice of the appropriate disciplinary measure falls within the discretion of an organization, provided that the discretion be exercised in observance of the rule of law, particularly the principle of proportionality (see Judgments 4660, consideration 16, 4504, consideration 11, 4247, consideration 7, 3640, consideration 29, and 1984, consideration 7). In reviewing the proportionality of a sanction, the Tribunal cannot substitute its evaluation for that of the disciplinary authority, and it limits itself to assessing whether the decision falls within the range of acceptability (see Judgment 4504, consideration 11).
Reference(s)
ILOAT Judgment(s): 1984, 3640, 4247, 4504, 4660
Keywords
proportionality; disciplinary measure
Consideration 20
Extract:
[T]he complainant’s previous period of unblemished service with the [Organization] was not, by itself, a mitigating factor (see Judgment 3083, consideration 20), even though in some cases it can be (see Judgment 4457, consideration 20).
Reference(s)
ILOAT Judgment(s): 3083, 4457
Keywords
mitigating circumstances; disciplinary measure; performance
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