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Judgment No. 2601

Decision

The complaint is dismissed.

Consideration 7

Extract:

"The Tribunal does not consider that in this case the requirements of due process were disregarded. The complainant was informed of the statements taken immediately after the incident and those gathered subsequently, and indeed of the observations made by the Chief of the Conferences Department, and he had several opportunities to express his own views and to comment on the documents submitted to the Joint Advisory Committee. There was no written rule or principle which obliged the Administration to take down those statements in the presence of the complainant, given that they were not used without his knowledge, or to hold a face-to-face meeting or a reconstitution on the spot of this regrettable incident."

Reference(s)

ILOAT Judgment(s): 999, 1133

Keywords

advisory body; testimony; inquiry; adversarial proceedings; right to reply; investigation

Considerations 9-10

Extract:

"It is hard to deny the complainant's misconduct: acts of rudeness and violence are naturally unacceptable in the workplace, whether in an international organisation or any other institution. It is particularly unacceptable for a supervisor to come to blows with a staff member under his supervision, and to strike him in the face as he did in the present case. [...] [I]t has not been established that [the complainant] merely defended himself from attack. As once again the Joint Advisory Committee found, 'even if [the complainant] was truly in a situation of self-defence, his reaction should have been proportionate to the assault. He should have tried to leave the premises without engaging in a fight and, if obliged to defend himself, he should merely have tried to bring his opponent under control without striking him to the point of causing him injury.'
[...] [T]he complainant could undoubtedly find mitigating circumstances in [his subordinate]'s attitude of insubordination, or even provocation, but that behaviour was in any case not such as to justify resorting to physical assault, which the defendant organisation could not tolerate on the part of a staff member entrusted with major responsibilities. The Tribunal in the circumstances is therefore unable to find that the sanction incurred by the complainant was clearly out of proportion (see Judgment 1725 for a similar situation)."

Reference(s)

ILOAT Judgment(s): 1725

Keywords

proportionality; misconduct; mitigating circumstances; serious misconduct; staff member's duties; conduct; insubordination; supervisor; disciplinary measure



 
Last updated: 04.09.2020 ^ top