Disciplinary measure (507, 210, 263, 389, 390, 391, 393, 395, 396, 398, 843, 969, 394, 508, 510, 511, 512, 513, 942, 514, 817, 908, 941, 943,-666)
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Keywords: Disciplinary measure
Total judgments found: 202
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Judgment 4859
138th Session, 2024
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to summarily dismiss him for serious misconduct.
Consideration 28
Extract:
The complainant’s lengthy service with UNAIDS and his recognised professional abilities and previous good record are not, by themselves, mitigating factors (see Judgment 3083, consideration 20), even though in some cases they can be (see Judgment 4457, consideration 20).
Reference(s)
ILOAT Judgment(s): 3083, 4457
Keywords:
disciplinary measure; mitigating circumstances; proportionality;
Consideration 28
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:
disciplinary measure; proportionality;
Judgment 4858
138th Session, 2024
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to summarily dismiss her for serious misconduct.
Consideration 28
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:
disciplinary measure; proportionality;
Consideration 28
Extract:
The complainant’s lengthy service with UNAIDS and her recognised professional abilities and previous good record are not, by themselves, mitigating factors (see Judgment 3083, consideration 20), even though in some cases they can be (see Judgment 4457, consideration 20).
Reference(s)
ILOAT Judgment(s): 3083, 4457
Keywords:
disciplinary measure; mitigating circumstances; proportionality;
Judgment 4856
138th Session, 2024
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to dismiss him for misconduct.
Consideration 19
Extract:
In his internal appeal, the complainant submitted that the measure of dismissal was harsh and disproportionate, primarily because in imposing it, WFP did not take into consideration his “long and distinguished service” with it. He also submitted that the measure had been imposed on an improper evidentiary basis, which he repeats before the Tribunal. The Appeals Committee concluded that the measure of dismissal was proportionate to the nature of the misconduct the complainant committed, with which conclusion the Director-General concurred in the impugned decision, noting that in imposing that measure, he had taken into account the complainant’s service but had decided that the imposition of a less severe measure was not warranted having regard to the totality of the circumstances, including the public nature of the complainant’s actions and his position. The Tribunal is satisfied that this determination was open to the Director-General in the circumstances of the case and discerns no manifest error in that determination. It therefore rejects the complainant’s claim that the disciplinary measure of dismissal was not proportionate.
Keywords:
aggravating circumstances; disciplinary measure; discretion; misconduct; mitigating circumstances; proportionality;
Judgment keywords
Keywords:
complaint dismissed; conflict of interest; disciplinary measure; misconduct; organisation's interest; outside activity; political activity; proportionality; staff member's duties;
Consideration 3
Extract:
As this complaint challenges a disciplinary decision, the Tribunal recalls its settled case law, that the burden of proof in such cases rests on an organization to prove the underlying allegations beyond a reasonable doubt before a disciplinary sanction can be imposed (see, for example, Judgment 3649, consideration 14).
Reference(s)
ILOAT Judgment(s): 3649
Keywords:
beyond reasonable doubt; burden of proof; disciplinary measure; standard of proof;
Consideration 18
Extract:
Regarding the disciplinary measure imposed on the complainant, the general principle in the Tribunal’s case law is that the severity of the sanction that is imposed on a staff member of an international organization whose misconduct has been established is in the discretion of the decision-making authority, who must however exercise it in observance of the rule of law, particularly the principle of proportionality (see, for example, Judgments 3953, consideration 14, and 3640, consideration 29).
Reference(s)
ILOAT Judgment(s): 3640, 3953
Keywords:
disciplinary measure; discretion; misconduct; proportionality;
Judgment 4846
138th Session, 2024
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges a finding made in the decision not to initiate disciplinary proceedings against her.
Considerations 11-12
Extract:
There is no material difference between the circumstances arising in this case and those that were considered by the Tribunal in Judgment 4295. In that case the complaint was dismissed because the complainant had no cause of action. A decision had been made by the Director General that no disciplinary measure would be imposed on the complainant. As the Tribunal observed, the decision was beneficial to the complainant, and thus he had no cause of action. To the extent that a finding of fact (contested by the complainant) had been made which led to the decision, that finding, as the Tribunal explained, “forms part of the reasons articulated in arriving at the decision”. In the present case, the decision not to commence disciplinary proceedings was likewise favourable to the complainant. To the extent findings of fact were made and adhered to in the impugned decision and reflected in the modified text of the letter of 22 February 2018, they were findings informing what was ultimately the favourable decision. Given the modification of the letter, there was no conclusory finding that the complainant had engaged in misconduct, the matter that troubled the WAB […] The complainant has no cause of action and her complaint should be dismissed.
Keywords:
administrative decision; cause of action; disciplinary measure; disciplinary procedure; impugned decision; misconduct; receivability of the complaint;
Judgment 4839
138th Session, 2024
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to reject her sexual harassment claim.
Consideration 6
Extract:
The IOM’s legal framework does not specify the applicable standard of proof for a finding of harassment. Regarding this point, the Tribunal’s case law states that, while the standard of proof required to impose disciplinary measures on an individual charged with misconduct is that of “beyond a reasonable doubt”, the applicable standard of proof for a finding of harassment is a less onerous standard (see, for example, Judgments 4663, consideration 12, 4289, consideration 10, and 4207, consideration 20).
Reference(s)
ILOAT Judgment(s): 4207, 4289, 4663
Keywords:
disciplinary measure; disciplinary procedure; harassment; misconduct; standard of proof;
Judgment 4837
138th Session, 2024
International Federation of Red Cross and Red Crescent Societies
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, who separated from service, contests the placement in his personnel file of a letter stating that he was found to have committed sexual harassment during his employment and that, had he not separated from service, he would have been imposed the disciplinary measure of a final letter of warning.
Judgment keywords
Keywords:
complaint allowed; disciplinary measure; former official; sexual harassment;
Consideration 9
Extract:
The complainant’s submission to the effect that the 30 July 2021 letter is contradictory in that it indicates it is both a disciplinary measure […] and not a disciplinary measure at the same time, is […] unfounded. That letter merely informed the complainant that it was determined from the reopened process that he had [committed sexual harassment] and he would have been sanctioned under the applicable rule had he still been a staff member.
Keywords:
disciplinary measure; former official; sexual harassment;
Judgment 4835
138th Session, 2024
International Federation of Red Cross and Red Crescent Societies
Extracts: EN,
FR
Full Judgment Text: EN,
FR
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.
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; conduct; disciplinary measure; discretion; offer withdrawn; sexual harassment;
Judgment keywords
Keywords:
complaint allowed; disciplinary measure; offer withdrawn; sexual harassment;
Judgment 4833
138th Session, 2024
International Federation of Red Cross and Red Crescent Societies
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision setting aside the disciplinary measure that had been imposed on him due to a procedural flaw, reopening the investigation by providing him with all the evidence gathered as part of the investigation and allowing him to comment on it, and declining to award him moral damages.
Judgment keywords
Keywords:
cause of action; complaint dismissed; disciplinary measure;
Judgment 4832
138th Session, 2024
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to impose on her the disciplinary sanction of demotion by two grades.
Considerations 36, 38-39 and 46
Extract:
Established precedent in the Tribunal’s case law has it that a staff member’s right to due process entails that the organization has an obligation to prove the misconduct complained of beyond reasonable doubt. This serves a purpose peculiar to the law of the international civil service and involves the recognition that often disciplinary proceedings can have severe consequences for the staff member concerned. In this regard, a staff member is to be given the benefit of the doubt (see, for example, Judgments 4697, consideration 12, and 4491, consideration 19). In this respect, in Judgment 4047, consideration 6, the Tribunal recalled that it is equally well settled that it will not engage in a determination as to whether the burden of proof has been met, instead, it will review the evidence to determine whether a finding of guilt beyond a reasonable doubt could properly have been made by the primary trier of fact (see also Judgments 4764, consideration 13, 4697, consideration 22, and 4364, consideration 10).
[…]
In its submissions, the organization has not pointed to any definition of serious misconduct short of arguing that, in its view, the complainant’s conduct even amounted to the equivalent of gross negligence. Also, it has not pointed to any jurisprudence of the Tribunal that establishes conduct of the type in question in these proceedings is serious misconduct or gross negligence. It is not disputed though that misconduct is quite different from serious misconduct and, here, the contention of the organization against the complainant is not that she committed misconduct but that she rather committed serious misconduct.
That being so, the Tribunal considers that ITU has manifestly failed to provide evidence establishing beyond reasonable doubt that the complainant committed serious misconduct or gross negligence in the present situation. The record indeed easily supports the conclusion that a finding of guilt beyond reasonable doubt with regard to an allegation of serious misconduct could not have been made properly by a primary trier of fact. To equate, as ITU did, the failures identified both in the notification of the disciplinary measure and in the impugned decision to a serious misconduct or a gross negligence was an error of law.
[…]
It follows […] that, on the facts of this case and considering the conduct identified by the organization in support of the disciplinary measure imposed on the complainant, a finding of serious misconduct established beyond reasonable doubt was clearly not open to any primary trier of fact on the record as it stands. The contrary conclusion reached by ITU was an error in law.
Reference(s)
ILOAT Judgment(s): 4047, 4364, 4491, 4697, 4764
Keywords:
disciplinary measure; evidence; standard of proof;
Considerations 47 and 49-50
Extract:
In support of her fourth plea, the complainant maintains that the organization furthermore ignored the principle of proportionality when it decided to impose a disciplinary sanction of demotion by two grades upon her.
The Tribunal has often recalled that, while a disciplinary authority within an international organization has a discretion to choose the disciplinary measure imposed on a staff member for misconduct, the decision must always respect the principle of proportionality (see, for example, Judgment 3640, consideration 29). In Judgment 4697, consideration 24, referring to its prior Judgment 4504, consideration 11, the Tribunal indeed observed that lack of proportionality is to be treated as an error of law warranting the setting aside of a disciplinary measure even though the decision in that regard is discretionary in nature (see also Judgment 4745, consideration 11).
[…]
In a situation where the misconduct that formed the basis of the disciplinary sanction was, in the end, as properly noted by the Appeal Board, a failure to supervise a staff member, a demotion by two grades clearly lacked proportionality when balanced against the drastic consequences that a demotion by two grades entailed for the complainant, notably in a situation where, after close to 20 years within the organization, a demotion by two grades meant for her going back to a grade even lower than the one she held when she started at ITU in 2000. That demotion was moreover for an indefinite period of time and was thus punishing her up to the end of her career at ITU given her age and seniority, in a situation where the record was absolutely clear that she had no participation, no involvement and no benefit in the fraudulent scheme that remained undetected for everyone within the organization for more than seven years up until an external anonymous whistleblower warned ITU.
The Tribunal considers that, in the present case, the Secretary-General could not, without breaching the principle of proportionality, impose on the complainant the sanction of demotion by two grades. This was an error of law and it amounted to an irregularity that vitiated the impugned decision, as well as the prior decision […].
Reference(s)
ILOAT Judgment(s): 3640, 4504, 4697, 4745
Keywords:
demotion; disciplinary measure; proportionality;
Judgment keywords
Keywords:
complaint allowed; demotion; disciplinary measure; disciplinary procedure;
Judgment 4817
138th Session, 2024
World Trade Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns a decision ordering a new investigation into her alleged misconduct and suspending the disciplinary measures pending the new investigation and a new decision in the matter. She contests this decision to the extent it maintained the finding that she committed misconduct.
Consideration 7
Extract:
The complainant’s fourth plea, alleging a breach of the double jeopardy rule, is unfounded. The double jeopardy rule precludes the imposition of further disciplinary measures for acts which have already attracted a disciplinary measure. The complainant has not been sanctioned twice, as the original disciplinary measures have been suspended and no new measures have been issued to date.
Keywords:
breach; disciplinary measure; double jeopardy;
Consideration 9
Extract:
The complainant […] requests that the Tribunal order that the new disciplinary measure to be imposed, if any, be limited to a lesser one than that which the Director-General imposed in his original decision of 8 May 2018, pursuant to the principle of double jeopardy. The Tribunal does not have the power to make orders of this kind, nor can it limit in such a way the discretion of the Director-General to determine the appropriate disciplinary measures, if any, to be imposed, in the event that misconduct is established.
Keywords:
competence of tribunal; disciplinary measure; discretion; executive head; order; proportionality;
Consideration 8
Extract:
Considering the unclear evidence in this regard, the Tribunal considers that, in the event the deductions have been made and have not already been reimbursed in full, the Organization should immediately reimburse all the deductions made, as they have no legal basis, since the disciplinary measures have been suspended. Considering that to date there are no findings of misconduct, the disciplinary measures cannot stand by themselves and their suspension must be fully retroactive.
Keywords:
deduction; disciplinary measure; retroactivity; suspensive action;
Consideration 9
Extract:
As regards the plea of a breach of the double jeopardy principle, as already said, there is no such breach to date. If and when a new disciplinary measure is issued, only then will it be possible to establish whether the double jeopardy principle is infringed.
Keywords:
breach; disciplinary measure; double jeopardy;
Judgment keywords
Keywords:
cause of action; complaint allowed; deduction; disciplinary measure; double jeopardy; investigation; manifest error; presumption of innocence; suspensive action;
Consideration 3
Extract:
The complainant contends that the impugned decision considered her misconduct as already proved and limited the scope of the new investigation. In addition, she contends that, even though the disciplinary measures, issued by the memorandum of 8 May 2018, no longer have a legal basis and have been suspended, she has not been reimbursed in full for the deductions from her salary applied from the date of the disciplinary decision until the date of the decision to suspend the disciplinary measures. The Tribunal finds that the impugned decision is potentially apt to immediately and adversely affect the complainant with regard to the alleged non-reimbursement of the salary deductions during the aforementioned period and the alleged improper limitation of the scope of the new investigation. In conclusion, the complaint is receivable and must be assessed on the merits. The Tribunal’s case law holds that the necessary, yet sufficient, condition of a cause of action is a reasonable presumption that the decision will bring injury. The decision must have some present effect on the complainant’s position (see Judgment 3337, consideration 7). This condition is met in the present case.
Reference(s)
ILOAT Judgment(s): 3337
Keywords:
cause of action; deduction; disciplinary measure; injury;
Judgment 4779
137th Session, 2024
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her dismissal for misconduct.
Consideration 16
Extract:
According to the Tribunal’s case law, the disciplinary authority within an international organisation has a discretion to choose the disciplinary measure imposed on an official for misconduct. However, its decision must always respect the principle of proportionality which applies in this area (see, in particular, Judgments 4400, consideration 29, 3944, consideration 12, 3927, consideration 13, and 3640, consideration 29).
In the present case, the Tribunal considers that the fraudulent acts referred to in consideration 15 above, although involving relatively modest amounts, constitute serious breaches of the duty of honesty incumbent on any member of the staff of an international organisation. In addition, the repeated failures by the complainant to honour private obligations were, as stated in consideration 13, liable to undermine the dignity of the status of international civil servant and tarnish the reputation of ITU. As correctly pointed out in the decision of 30 July 2021, the fact that the complainant worked in the Human Resources Management Department is an aggravating factor since it can normally be assumed that staff within that department will be particularly careful to observe the ethical standards expected of the organisation’s staff members. Lastly, although the personal difficulties referred to above might certainly be considered as a mitigating factor, the facts at issue would in any case be no less serious on that account.
Reference(s)
ILOAT Judgment(s): 3640, 3927, 3944, 4400
Keywords:
aggravating circumstances; disciplinary measure; discretion; proportionality;
Judgment 4770
137th Session, 2024
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss him for misconduct.
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:
disciplinary measure; mitigating circumstances; performance;
Judgment keywords
Keywords:
complaint dismissed; disciplinary measure; termination of employment;
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:
disciplinary measure; proportionality;
Judgment 4764
137th Session, 2024
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to dismiss her for misconduct.
Consideration 13
Extract:
In relation to the question of whether conduct founding a disciplinary measure has been proved beyond reasonable doubt and what evidence the Tribunal considers, it has said its role is a limited one, as described in Judgment 4362, consideration 7:
“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 [...]”
Plainly enough that role does not require, indeed contemplate, further evidence to be furnished in the proceedings before the Tribunal. The touchstone for error in this regard concerns the evaluation of the evidence by the relevant decision-maker, namely the evidence before him or her.
Reference(s)
ILOAT Judgment(s): 4362
Keywords:
competence of tribunal; disciplinary measure; evidence; standard of proof;
Judgment keywords
Keywords:
competence of tribunal; complaint dismissed; disciplinary measure; misconduct;
Judgment 4749
137th Session, 2024
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the termination of his appointment with compensation in lieu of notice.
Judgment keywords
Keywords:
complaint dismissed; disciplinary measure; disciplinary procedure; termination of employment;
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:
beyond reasonable doubt; disciplinary measure; disciplinary procedure; standard of proof;
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:
disciplinary measure; disciplinary procedure; fraud; proportionality;
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:
disciplinary measure; fraud; mitigating circumstances; proportionality;
Judgment 4745
137th Session, 2024
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to discharge him after due notice.
Judgment keywords
Keywords:
complaint dismissed; discharge with notice; disciplinary charges; disciplinary measure;
Consideration 10
Extract:
The Tribunal […] adds that, according to its well-settled case law regarding the standard of proof in cases of misconduct, the burden of proof rests on an organization, which has to prove allegations of misconduct beyond reasonable doubt before a disciplinary sanction can be imposed (see, for example, Judgments 4697, consideration 22, 4491, consideration 19, 4461, consideration 6, 4364, consideration 10, and the case law cited therein). In the present case, the Tribunal is satisfied that it was open to the Organization to find, on the evidence, that the complainant’s misconduct was proved beyond reasonable doubt.
Reference(s)
ILOAT Judgment(s): 4364, 4461, 4491, 4697
Keywords:
benefit of doubt; burden of proof; disciplinary measure; disciplinary procedure; judicial review; presumption of innocence;
Consideration 11
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, for example, 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. Lack of proportionality is to be treated as an error of law warranting the setting aside of a disciplinary measure even though a decision in that regard is discretionary in nature. In determining whether disciplinary action is disproportionate to the offence, both objective and subjective features are to be taken into account (see Judgment 4504, consideration 11, and the case law cited therein). […]
The evaluation of the weight, if any, of the extenuating circumstances falls within the discretion of the Organization. […]
Apologizing after the events is not a mitigating factor in the absence of concrete actions by the complainant to remedy the difficult situation he created.
Reference(s)
ILOAT Judgment(s): 1984, 3640, 4247, 4504, 4660
Keywords:
disciplinary measure; mitigating circumstances; proportionality;
Judgment 4697
136th Session, 2023
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the Director General’s decision to impose on him the disciplinary sanction of downgrading.
Consideration 22
Extract:
In Judgment 4491, consideration 19, the Tribunal recalled that “[a] staff member accused of wrongdoing is presumed to be innocent and is to be given the benefit of the doubt”. Similarly, in Judgment 3969, consideration 16, the Tribunal reiterated that, when the executive head of an organisation seeks to motivate his conclusions and decision for departing from the conclusions of a Disciplinary Committee, she or he must establish beyond a reasonable doubt the conduct or behaviour of which a complainant is accused. Lastly, in Judgment 4047, consideration 6, the Tribunal recalled that it is equally well settled that the “Tribunal will not engage in a determination as to whether the burden of proof has been met, instead, the Tribunal will review the evidence to determine whether a finding of guilt beyond a reasonable doubt could properly have been made by the primary trier of fact”.
In the present case, the Tribunal considers it entirely apparent, as was also noted in the unanimous opinions of the Disciplinary Board and the Joint Committee for Disputes, that the Administration could not have found the complainant to be guilty beyond reasonable doubt of the alleged breaches of the provisions of the Staff Regulations relied on.
Reference(s)
ILOAT Judgment(s): 4047, 4491
Keywords:
benefit of doubt; burden of proof; disciplinary measure; disciplinary procedure; judicial review; presumption of innocence;
Consideration 24
Extract:
[W]ith regard to the complainant’s [...] plea, that the sanction imposed was unlawful and disproportionate, the Tribunal recalled, in its Judgment 4504, consideration 11, that “[l]ack of proportionality is to be treated as an error of law warranting the setting aside of a disciplinary measure even though a decision in that regard is discretionary in nature. In determining whether disciplinary action is disproportionate to the offence, both objective and subjective features are to be taken into account (see Judgment 4478, consideration 11, and the case law cited therein).”
Reference(s)
ILOAT Judgment(s): 4478, 4504
Keywords:
disciplinary measure; proportionality;
Judgment 4680
136th Session, 2023
ITER International Fusion Energy Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to impose on him the disciplinary measure of dismissal with forfeiture of an indemnity for loss of job.
Consideration 6
Extract:
The question of interpretation which arises […] is whether Article 23.2(g) obliges the Director-General to notify the staff member of the specific disciplinary measure she or he then intends to impose, or it is sufficient to repeat, as happened in this case, that a disciplinary measure of those listed will be imposed. The provision is ambiguous. One meaning is that the words “notify the staff member [...] that a disciplinary measure among those listed in Article 23.3 of these Regulations will be imposed” requires notification of what disciplinary measure will be imposed, with the words “among those listed in Article 23.3” identifying the four measures from which one can be chosen and nominated. The other meaning is that it is sufficient to repeat that an unidentified disciplinary measure of those listed in Article 23.3 will be imposed. In Judgment 4639, consideration 3, the Tribunal stated: […]
It would obviously favour the staff member to treat Article 23.2(g) as requiring disclosure of the specific disciplinary measure which will be imposed (subject, of course, to the procedures in Article 23 itself) in order to arm her or him with information relevant to the question of whether to request that a Disciplinary Board examine her or his case. It would usually be the case that the staff member would be far more inclined to seek such an examination if dismissal was in contemplation rather than, for example, a written censure. As was noted in one of the Tribunal’s earlier reported cases, Judgment 203, consideration 2, the imposition of the disciplinary sanction of discharge or summary dismissal could cause serious harm to the staff member and her or his family. This interpretation, namely that the specific disciplinary measure proposed must be notified pursuant to Article 23.2(g), would also give rise to a fairer and more balanced procedure. It would be fairer because it would give the concerned staff member an opportunity to argue before the Disciplinary Board that the specific disciplinary measure in contemplation was disproportionate, or otherwise inappropriate, as well as giving the Disciplinary Board an opportunity to review what is in contemplation in formulating the recommendation required by Annex VII(2)(c) of the Staff Regulations.
Reference(s)
ILOAT Judgment(s): 4639
Keywords:
disciplinary measure; interpretation; notification;
Judgment 4660
136th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the Secretary General’s decision to dismiss him summarily without indemnities on disciplinary grounds.
Consideration 16
Extract:
Under settled case law of the Tribunal, “[t]he disciplinary authority within an international organisation has a discretion to choose the disciplinary measure imposed on an official for misconduct. However, its decision must always respect the principle of proportionality which applies in this area” (see, for example, Judgments 4504, consideration 11, 3971, consideration 17, 3944, consideration 12, and 3640, consideration 29).
Reference(s)
ILOAT Judgment(s): 3640, 3944, 3971, 4504
Keywords:
disciplinary measure; proportionality;
Consideration 15
Extract:
By imposing a disciplinary measure of summary dismissal without termination indemnities on the complainant, the Secretary General therefore breached the provisions of aforementioned Staff Rule 12.1.3(1)(i) and thereby committed an error of law. The Tribunal observes that it is even possible to consider that this measure, insofar as it amounts in practice to a summary dismissal for mere misconduct, is not among those listed in Staff Rule 12.1.3(1) and that the Secretary General therefore breached the principle nulla poena sine lege, applicable in disciplinary matters, according to which an authority cannot lawfully impose a sanction other than those provided for in the organisation’s staff rules and regulations (see, in particular, Judgment 757, consideration 7).
Reference(s)
ILOAT Judgment(s): 757
Keywords:
disciplinary measure; mistake of law;
Consideration 23
Extract:
The sanction of summary dismissal without termination indemnities imposed on the complainant also caused him obvious moral injury since it seriously damaged his honour and professional reputation of itself and inevitably caused him a psychological shock and a feeling of anxiety about losing his job.
Although an examination of the evidence does not support a finding that, as the complainant maintains, his departure from Interpol’s Headquarters on the day of the notification of this sanction also took place in conditions which violated his dignity, this moral injury was nevertheless further aggravated by the breach of his rights resulting from the various defects, identified above, which tainted the disciplinary proceedings and the internal appeal procedure.
Keywords:
disciplinary measure; moral injury;
Consideration 17
Extract:
[T]he evidence shows that the complainant can refer to significant mitigating circumstances, which should be given due consideration in accordance with both the general principles applicable in disciplinary matters and the express provisions of Staff Rule 12.3.2(7), which states that “in reaching his decision, the Secretary General shall take into account any evidence in the official’s defence”.
Keywords:
disciplinary measure; mitigating circumstances;
Judgment 4659
136th Session, 2023
International Criminal Police Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss him for serious misconduct.
Consideration 8
Extract:
Ordinarily, an official dismissed for disciplinary reasons whose dismissal is set aside is entitled to reinstatement if she or he holds an indeterminate appointment, which the complainant did. However, the Tribunal may decide not to make such an order if reinstatement is no longer possible or if it is inappropriate. According to the Tribunal’s case law, reinstatement may be inappropriate if the official concerned would not be able to establish a satisfactory working relationship with her or his colleagues and supervisors (see Judgments 4622, consideration 15, and 4540, consideration 13).
So it is in this case. The evidence on the file shows that the complainant had a conflictual relationship with many of his colleagues, as well as with his supervisors. His reinstatement in the Organization would therefore raise obvious difficulties and will not be ordered.
Reference(s)
ILOAT Judgment(s): 4540, 4622
Keywords:
disciplinary measure; reinstatement;
Consideration 5
Extract:
The Tribunal notes that the decision to dismiss the complainant for serious misconduct, taken by the Secretary General on 24 December 2018 and confirmed by the impugned decision, states that the disciplinary measure imposed was based on several acts of misconduct, one of which was expressly presented as particularly serious, that is the complainant’s withholding of lists of foreign terrorists.
However, the Tribunal observes that, as the complainant submits, the latter act of misconduct was not included in the confidential memorandum of 26 March 2018 notifying the complainant of the charges against him, even though it had a clear impact in the assessment of the seriousness of the disciplinary penalty to be ordered. In fact, it is apparent from the evidence that the complainant was only officially informed of this new charge on the actual day of his hearing before the Joint Disciplinary Committee, at which he was directly invited to present his comments on the matter.
More generally, the Tribunal finds that, as the complainant contends, due process was clearly breached by the fact that he was unable to prepare his defence before the Joint Disciplinary Committee effectively, if necessary with the assistance of his counsel, and that, contrary to what had been promised to him on various occasions during the proceedings by the Chairman of the Committee, he was unable to participate actively in the processing of the evidence by criticising the evidence gathered by the Organization and putting forward his own (see, in that regard, Judgments 4011, consideration 9, 3295, consideration 11, and 1661, consideration 3).
Reference(s)
ILOAT Judgment(s): 1661, 3295, 4011
Keywords:
adversarial proceedings; disciplinary measure; disciplinary procedure;
Consideration 4
Extract:
The Tribunal notes that it is undisputed that the preliminary inquiry report was never sent to the complainant in its entirety, even in a version redacted to the extent necessary to maintain the confidentiality of some aspects of the investigation, linked in particular to protecting the interests of third parties. It is true that, as the Organization argues, the actual disciplinary proceedings were only initiated by the notification of the Secretary General’s confidential memorandum of 26 March 2018. However, the fact remains that the preliminary inquiry report also constitutes obviously an important element of the proceedings in the present case, since the charges initially brought against the complainant were based on that report and it had been forwarded to both the Joint Disciplinary Committee and the Joint Appeals Committee, which took it into consideration in their respective opinions.
It follows that Staff Rule 10.3.2(5), under which the official concerned “[shall] have access to all documents and forms of evidence submitted to the Joint Committees” was not complied with and there was a breach of due process as established in the Tribunal’s case law (see Judgments 4412, consideration 14, 4310, consideration 11, and 3295, consideration 13).
Reference(s)
ILOAT Judgment(s): 3295, 4310, 4412
Keywords:
adversarial proceedings; confidentiality; disciplinary measure; disciplinary procedure; disclosure of evidence; investigation report;
Judgment 4633
135th Session, 2023
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to impose on him the sanction of demotion.
Judgment keywords
Keywords:
case sent back to organisation; complaint allowed; disciplinary measure; staff assessment; standard of proof;
Considerations 9-11
Extract:
It can be seen (and this is conceded by the EPO) that at no point does the Committee refer to the standard of proof applicable in proceedings alleging misconduct, namely beyond a reasonable doubt. It may be doubted that the all-encompassing expression in the “CONCLUSION” of “more than sufficiently probative” should be taken to replace earlier clear intimations that the evidence was simply “sufficient”. In the result, the assessment of the Committee was either that evidence was “sufficient”, “sufficiently detailed and probative”, an event was “overwhelmingly likely” to have occurred or evidence was “more than sufficient”.
There are several judgments of the Tribunal deprecating reliance simply on the sufficiency of evidence as establishing misconduct in disciplinary proceedings. One illustration is found in Judgment 3880, consideration 9, in which the Tribunal said:
“Whether there is sufficient evidence to support a finding of misconduct is a far less onerous evidentiary burden than the requisite ‘beyond a reasonable doubt’ standard of proof. The application of the incorrect standard of proof is a fundamental error of law and requires, on this ground alone, that the impugned decision be set aside.”
Similarly in Judgment 4360, consideration 12, the Tribunal said: “[t]here is a material difference between being satisfied there was sufficient evidence establishing a fact and being satisfied beyond reasonable doubt that the fact existed”.
The language used by the Committee casts real doubt on whether it turned its mind to the appropriate standard of proof. An illustration is found in the Committee’s consideration of the letter sent to the Swedish politician referred to in consideration 6 above. The Committee prefaced its conclusion as to whether the letter was sent by saying “we cannot be sure that this was the letter that was attached” to the email to the Swedish politician but that “it was overwhelmingly likely that it was”. The first part of this formulation manifests doubt. While it is true that the second part manifests a high degree of confidence, it is difficult to say with any certainty that applying the standard of beyond reasonable doubt, the Committee would have come to the conclusion it did.
Reference(s)
ILOAT Judgment(s): 4360
Keywords:
disciplinary measure; standard of proof;
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