Proportionality (210,-666)
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Keywords: Proportionality
Total judgments found: 80
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Judgment 4244
129th Session, 2020
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to relegate her by two salary steps.
Consideration 4
Extract:
Regarding the severity of the sanction, the Tribunal’s case law has it that “[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 3971, consideration 17, 3953, consideration 14, 3944, consideration 12, and 3640, consideration 29).
Reference(s)
ILOAT Judgment(s): 3640, 3944, 3953, 3971
Keywords:
disciplinary measure; proportionality;
Judgment 4051
126th Session, 2018
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss him for misconduct.
Consideration 5
Extract:
Consistent precedent has it that disciplinary decisions are within the discretionary authority of the executive head of an international organization and are subject to only limited review. In Judgment 3297, consideration 8, the Tribunal stated that it will interfere only if the decision is tainted by a procedural or substantive flaw. Additionally, the Tribunal will not interfere with the fact findings of an investigative body unless there is manifest error (see, for example, Judgment 3872, consideration 3). In disciplinary matters, the burden of proof lies with the employer, which must demonstrate that the complainant did indeed engage in the conduct of which he was accused (see, for example, Judgments 3297, consideration 8, and 3875, consideration 8).
Reference(s)
ILOAT Judgment(s): 3297, 3872, 3875
Keywords:
burden of proof; disciplinary measure; discretion; judicial review; proportionality;
Judgment 4050
126th Session, 2018
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to impose on him the disciplinary sanction of relegation in step.
Considerations 22-23
Extract:
The complainant claims that his actions did not cause any identifiable prejudice. The Tribunal observes that the complainant obstructed the proper functioning of the system of internal remedies by his unjustified absence from the July session, his undermining of the Chairperson’s authority to take organizational decisions and his refusal to finalize the cases assigned to him which had been pending prior to the July session before leaving the IAC. The complainant does not acknowledge the negative impact of his uncooperative behaviour on the functioning of the IAC, which consequently adversely affected the interests of the other members of the IAC.
[...] The Tribunal finds that in [his] decisions [...] the President properly motivated his reasoning for deviating from the Disciplinary Committee’s recommendation of the sanction of relegation in step by one step. Furthermore, the [...] mitigating factors identified by the complainant are unconvincing. [T]he provisions were lawful, his absence was unjustified, his behaviour was intentional, and furthermore, his willingness to attend the September session was conditional. Taken as a whole, the complainant’s behaviour constituted misconduct, which was aggravated by the fact that he was an IAC member who would be expected to have a high level of respect for the rules, for confidentiality, and for the proper functioning of the appeal system. [T]he President maintained the sanction proposed by the Disciplinary Committee (relegation in step), but after considering the severity of the misconduct, he concluded that relegation by three steps was justified. The Tribunal considers the contested sanction not to be disproportionate in light of the above considerations.
Keywords:
disciplinary measure; disciplinary procedure; proportionality;
Judgment 3971
125th Session, 2018
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decisions to ban him from entering the EPO’s premises, to suspend him from duties and to downgrade him.
Consideration 17
Extract:
The claim that the decision to downgrade the complainant violated the principle of proportionality is unfounded. Regarding the severity of the sanction, the case law has it that “[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,Judgment 3640, under 29). The complainant’s refusal to attend the IAC hearings and sessions was particularly onerous for the Organisation considering the heavy backlog of internal appeals that the IAC needed to confront. Keeping in mind that the Tribunal cannot substitute its evaluation for that of the disciplinary authority, the Tribunal limits itself to assessing whether the decision falls within the range of acceptability. In the present case, the Tribunal finds that the sanction imposed is not disproportionate.
Reference(s)
ILOAT Judgment(s): 3640
Keywords:
disciplinary measure; proportionality;
Judgment 3968
125th Session, 2018
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to impose on her the disciplinary measure of downgrading for serious misconduct, and the decision not to initiate an investigation into her allegations of institutional harassment.
Considerations 26 and 27
Extract:
The Tribunal concludes the complainant acted carelessly, with regard to a very sensitive subject, conscious of the probability that her statement would highly offend other staff members and would create great unrest among colleagues, damaging the work environment. The Tribunal observes the complainant’s actions were serious and wrong and cannot be justified by an alleged good purpose.
[T]aking into account the discretion enjoyed by the disciplinary authority and, in particular, the complainant’s refusal to apologize to Mr A. and the serious consequences of that behaviour on Mr A.’s health, the Tribunal finds that the contested disciplinary measure is not disproportionate and that the complainant’s twentieth complaint must also be dismissed (see Judgment 3640, under 29).
Reference(s)
ILOAT Judgment(s): 3640
Keywords:
disciplinary measure; misconduct; proportionality;
Judgment 3953
125th Session, 2018
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to impose upon her the disciplinary measure of downgrading and to recover from her undue payments through monthly deductions from her salary.
Consideration 14
Extract:
Regarding the severity of the imposed sanction, the Tribunal recalls that, according to a long line of precedent the decision-making authority has discretion in determining the severity of a sanction to be applied to a staff member whose misconduct has been established. However, as stated in Judgment 3640, under 29 and 31, that discretion must be exercised in observance of the rule of law, particularly the principle of proportionality. In the present case, the complainant’s downgrading was not disproportionate to her misconduct. The complainant took financial advantage from the contested unlawful conduct with which she was charged and which was established. This is a serious breach of the duty of honesty incumbent on international civil servants and her state of health has no bearing on the merits of the impugned decision. In light of the above considerations, the complaint must be dismissed.
Reference(s)
ILOAT Judgment(s): 3640
Keywords:
disciplinary measure; downgrading; fraud; proportionality;
Judgment 3944
125th Session, 2018
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to dismiss him following disciplinary proceedings.
Consideration 12
Extract:
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 Judgment 3640, under 29). In this case, the Tribunal finds that the complainant engaged in repeated fraudulent practices over several months. In view of the serious nature of the acts committed by the complainant, his dismissal cannot be deemed disproportionate, notwithstanding the various factors which he puts forward for consideration. This plea will therefore be dismissed.
Reference(s)
ILOAT Judgment(s): 3640
Keywords:
disciplinary measure; fraud; proportionality;
Judgment 3927
125th Session, 2018
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to suspend her without pay for three months for misconduct.
Consideration 13
Extract:
“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 Judgment 3640, under 29). [...] Regardless of the situation, the complainant’s statements (not directed at Ms B. specifically but still referring to work colleagues) were beyond what is appropriate for an international civil servant and the Tribunal notes that her behaviour immediately following the incident was not “pro-active”. The complainant had gone to speak with Ms B. for other work-related matters, and only after realizing that Ms B. was upset and after being told by her that she had filed a complaint did the complainant apologize. Therefore the Tribunal finds that, in this case, it was not disproportionate for the Director General to impose the disciplinary measure of a three-month suspension without pay. In all the circumstances, and notwithstanding the conclusion that there was a procedural flaw, it is inappropriate to set aside the impugned decision and remit the matter to the UPU.
Reference(s)
ILOAT Judgment(s): 3640
Keywords:
disciplinary procedure; proportionality;
Judgment 3703
122nd Session, 2016
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the extension by one month and the subsequent non-renewal of his fixed-term contract.
Consideration 6
Extract:
It is true that, as the complainant submits, an advisory appeal body should not limit its power to review discretionary decisions in the same was as a judicial body would do (see Judgment 3125, under 12), but this was not what the Joint Committee did. The issue it had to resolve, having regard to the all the circumstances of the case, was that of the lawfulness of the non-renewal of a fixed-term contract. It might well have proposed a solution which it deemed to be more consonant with the principle of proportionality, but it was by no means obliged to do so, as it considered that the complainant’s criticism was unfounded.
Reference(s)
ILOAT Judgment(s): 3125
Keywords:
internal appeals body; proportionality;
Judgment 3649
122nd Session, 2016
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision of the Director General of the IAEA to summarily dismiss him for serious misconduct.
Consideration 15
Extract:
When viewed together, the complainant’s actions show a continuum of serious misconduct compounded by his lack of candor during the course of the investigation. In the circumstances, the sanction imposed was not disproportionate.
Keywords:
proportionality;
Judgment 3640
122nd Session, 2016
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the disciplinary measure of his summary dismissal in the wake of a sexual harassment complaint filed against him by one of his colleagues.
Considerations 29-31
Extract:
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.
In the present case, the Tribunal considers that the acts of sexual harassment of which the complainant was accused are undeniably serious on account of their nature and their repetition. Moreover, it is clear from the evidence in the file that their gravity is exacerbated by two particular circumstances which must be emphasised here. First, it appears from the investigation report, inter alia, that many of the persons subjected by the complainant to the unwelcome behaviour in question were young women who did not hold a permanent appointment and who were therefore in a precarious situation which made it difficult for them to protest, let alone report it, especially as the complainant often had the power to influence the progress of their career. Secondly, it is plain from the file that, [...] after protests from several of his colleagues, the complainant had received various warnings about the inappropriate nature of his conduct. Thus, even assuming that the complainant had not instinctively realised it, he could not thereafter have been unaware that his behaviour towards the women who had to work alongside him was perceived by them to be improper, offensive and extremely unpleasant. This did not, however, prevent him from repeating his reprehensible conduct on many occasions, since further incidents occurred [...].
Having regard to these various considerations, and even though the complainant’s record of service with the Organization was otherwise excellent, the Tribunal finds that, in this case, the Director-General did not adopt a disproportionate disciplinary measure when she decided on the complainant’s summary dismissal for serious misconduct.
Keywords:
disciplinary measure; proportionality; sexual harassment; summary dismissal;
Judgment 3602
121st Session, 2016
World Trade Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, a former employee of the WTO, contests the Director-General’s decision to summarily dismiss him for serious misconduct.
Considerations 25 and 27
Extract:
The Tribunal considers that in the particular circumstances the WTO had a duty of care towards the complainant that went beyond the mere statement that he had not established that his illness was responsible for his behaviour. That duty required the WTO to seek further medical advice concerning the complainant's medical condition that would have assisted it to have made a more informed assessment of a causal connection and consequential decision in the matter. This assessment should also have been weighed in determining proportionality. Having not done so, the impugned decision was unlawful [.]
[...]
[T]he impugned decision must be set aside to the extent that it found that summary dismissal was a proportionate sanction. The matter will be remitted to the WTO for reconsideration.
Keywords:
case sent back to organisation; disciplinary measure; medical fitness; proportionality;
Judgment 3295
116th Session, 2014
Pan American Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complaint concerning a disciplinary measure was dismissed by the Tribunal on the grounds that he had not demonstrated the existence of an error warranting the cancellation of the sanction.
Consideration 16
Extract:
"In Judgment 2944, under 50, the Tribunal described the test for proportionality as the disciplinary measure must not be “manifestly out of proportion” to the misconduct. In this case, the Tribunal observes the seriousness of the complainant’s actions. He misused PAHO’s resources and immunity in a fashion that was deliberate and careless; he risked PAHO’s reputation and its relationship with the government of Venezuela; he breached his duty of loyalty to PAHO; and his conduct was incompatible with the performance of his duties as PAHO Country Representative in Venezuela. In these circumstances, it cannot be said that summary dismissal was disproportionate to the misconduct."
Reference(s)
ILOAT Judgment(s): 2944
Keywords:
case law; disciplinary measure; disciplinary procedure; discretion; general principle; misconduct; official; proportionality; serious misconduct; staff member's duties; summary dismissal;
Judgment 2944
109th Session, 2010
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 50
Extract:
"[A]ccording to firm precedent, as recalled in particular in Judgments 207, 1984 and 2773, the disciplinary authority has a discretion to determine the severity of a disciplinary measure justified by a staff member's misconduct, provided that the measure adopted is not manifestly out of proportion to the offence. It cannot be alleged that termination of the complainant’s appointment, the disciplinary measure chosen, was manifestly out of proportion to the degree of seriousness of the acts listed above, notwithstanding the complainant’s length of service with UNESCO and her recognised professional abilities. The Tribunal therefore considers that, in taking this decision, the Director General did not exceed the limits of his discretionary authority."
Reference(s)
ILOAT Judgment(s): 207, 1984, 2773
Keywords:
case law; condition; disciplinary measure; disciplinary procedure; discretion; misconduct; proportionality; summary dismissal;
Judgment 2882
108th Session, 2010
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"Although rules of procedure must be strictly complied with, they must not be construed too pedantically or set traps for staff members who are defending their rights. If these staff members break such a rule, the penalty must fit the purpose of the rule. Consequently, a staff member who appeals to the wrong body does not on that account forfeit the right of appeal (see Judgments 1734, under 3, and 1832, under 6). [...] The fact that an appeal is mistakenly submitted directly to the Appeal Board, as occurred in this case, cannot entail the irreceivability of the appeal. The Appeal Board has a duty to forward to the Director General any document which is intended for his attention and which has been sent to it in error, in order that it may be treated as a request for review."
Reference(s)
ILOAT Judgment(s): 1734, 1832
Keywords:
breach; due process; executive head; formal requirements; good faith; internal appeal; internal appeals body; interpretation; organisation's duties; proportionality; purpose; receivability of the complaint; right of appeal; staff member's duties; written rule;
Judgment 2849
107th Session, 2009
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 20-22
Extract:
The complainant was dismissed for misconduct.
"The question remains whether the sanction of dismissal was warranted in the circumstances. In Judgment 207 the Tribunal held that it is not its role to substitute one disciplinary sanction for another unless the penalty imposed is clearly out of proportion with the gravity of the offence. The Tribunal further commented in Judgment 2656, under 5, that '[...] 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 and, in the case of dismissal, the closest scrutiny is necessary (see Judgment 937).'"
"In the present case, the Director-General rejected the Appeals Committee's recommendation that a lesser sanction be imposed. [The] Director-General [...] observed that 'it is well established in law that unsatisfactory conduct and unsatisfactory performance are different matters with different administrative consequence'. While the Director-General's observation is correct, it does not follow that exemplary prior service is not a relevant mitigating factor in the determination of a proper sanction."
"It must be noted, however, that in the present case it was not a matter of a single transgression within the context of an otherwise unblemished career. The Director-General properly considered the incompatibility of the complainant's conduct with his role as a representative of the FAO and considered the nature of the actions of misconduct in deciding that, when taken together they justified a dismissal from service. In these circumstances, the Tribunal will not interfere."
Reference(s)
ILOAT Judgment(s): 937, 2656
Keywords:
discretion; general principle; judicial review; misconduct; proportionality; termination of employment;
Judgment 2773
106th Session, 2009
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 28
Extract:
[T]he Tribunal points out that according to firm precedent, as recalled in particular in Judgments 207 and 1984, the disciplinary authority has discretion in determining the severity of a sanction justified by a staff member’s misconduct, provided that the principle of proportionality is respected.
Reference(s)
ILOAT Judgment(s): 207, 1984
Keywords:
disciplinary measure; discretion; proportionality;
Consideration 28
Extract:
[W]ith regard to the issue of whether the measure of dismissal duly reflects the seriousness of the offences committed, the Tribunal points out that according to firm precedent, as recalled in particular in Judgments 207 and 1984, the disciplinary authority has discretion in determining the severity of a sanction justified by a staff member’s misconduct, provided that the principle of proportionality is respected. In view of the serious nature of the above-mentioned acts, and although the complainant had always been complimented on his professional abilities throughout his career, the Director-General of the FAO clearly did not exceed his discretionary authority in deciding to dismiss the complainant. The principle of proportionality has not therefore been breached.
Reference(s)
ILOAT Judgment(s): 207, 1984
Keywords:
disciplinary measure; discretion; proportionality; termination of employment;
Judgment 2745
105th Session, 2008
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 19
Extract:
"It was said in Judgment 2524 that, although harassment and mobbing do not require bad faith or prejudice or other malicious intent, 'behaviour will not be characterised as harassment or mobbing if there is a reasonable explanation for the conduct in question'. Thus, it was said in Judgment 2370 that conduct that 'had a valid managerial purpose or was the result of honest mistake, or even mere inefficiency' would not constitute harassment. However and as pointed out in Judgment 2524, 'an explanation which is prima facie reasonable may be rejected if there is evidence of ill will or prejudice or if the behaviour in question is disproportionate to the matter which is said to have prompted the course taken'."
Reference(s)
ILOAT Judgment(s): 2370, 2524
Keywords:
bias; condition; conduct; consequence; definition; evidence; good faith; grounds; intention of parties; judgment of the tribunal; mistake of fact; organisation's duties; proportionality; qualifications; respect for dignity;
Judgment 2741
105th Session, 2008
International Olive Oil Council
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5(a)
Extract:
The decision-making authority cannot disregard the opinions or recommendations it receives from advisory bodies without good reason (see Judgment 2092, under 10). Otherwise, advisory procedures would be meaningless and serve no purpose. However, such opinions or recommendations do not bind the decision-making authority to the extent of barring it from undertaking an impartial assessment of the merits of the proposals made and curtailing its obligation to examine carefully, in particular, whether the findings of fact that they contain are correct. Nevertheless, where a decision-making authority intends to disregard the recommendations of advisory bodies, it must state clearly in its decision the objective grounds that led it to opt for a divergent conclusion. In the case of a disciplinary procedure, this clearly applies not only to the appraisal of the evidence gathered but also, on the one hand, to the decision whether or not to order a penalty and, on the other, to the severity of the penalty, which should respect the principle of proportionality.
Reference(s)
ILOAT Judgment(s): 2092
Keywords:
disciplinary measure; final decision; motivation; proportionality;
Judgment 2719
105th Session, 2008
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11
Extract:
"Standing alone, the punishment of summary dismissal, as distinct from dismissal, might be thought to be disproportionate to the misconduct of which the complainant was guilty. However, he was twice warned in writing in 1998 to improve his poor attendance record. In the same year, he was informed that the complaints received 'with regard to [...] alleged financial manipulations, fraudulent activities, police and court cases' were causing embarrassment to the Organization and he was cautioned to 'extricate [him]self from these situations'. In 2002, he was found guilty of misconduct in relation to banking transactions and issued with a written reprimand. In the light of these matters, the punishment of summary dismissal cannot be regarded as disproportionate."
Keywords:
censure; conduct; disciplinary measure; proportionality; serious misconduct; summary dismissal; warning;
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