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Misconduct (392, 393, 394, 652,-666)

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Keywords: Misconduct
Total judgments found: 125

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  • Judgment 4106


    127th Session, 2019
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests the decision to apply to him the sanction of discharge.

    Judgment keywords

    Keywords:

    misconduct; termination;



  • Judgment 4077


    127th Session, 2019
    Universal Postal Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The UPU applies for interpretation and review of Judgment 3928 alleging errors of fact, inter alia, and asserts that it is impossible to give effect to the Tribunal’s order to reinstate the complainant. The complainant applies for execution of Judgment 3928.

    Consideration 25

    Extract:

    [T]he [organization] could not refer to the complainant’s alleged misconduct as a reason not to reinstate him as no disciplinary proceeding has occurred in that regard, so misconduct has never been proven. It is all the more grave when considering that the alleged reason for the abolition of the posts was because of financial constraints. The abolition of a post can never be based on a staff member’s conduct, as that would constitute a hidden sanction. The [organization]’s presentation before the Council of Administration constituted a breach of the duty of care and of the adversarial principle, as the complainant was not given any opportunity to defend himself and his reputation from the allegations. The UPU must respect the dignity of its staff and preserve their reputation.

    Keywords:

    abolition of post; adversarial proceedings; budgetary reasons; due process; duty of care; hidden disciplinary measure; misconduct; reinstatement;



  • Judgment 4065


    127th Session, 2019
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: In his second complaint, the complainant challenges the decision to dismiss him, while he was on sick leave, for misconduct. In his third complaint, he challenges the dismissal decision on the merits.

    Judgment keywords

    Keywords:

    misconduct; sick leave; termination;



  • Judgment 4063


    127th Session, 2019
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to terminate his appointment on disciplinary grounds.

    Judgment keywords

    Keywords:

    misconduct; termination;



  • Judgment 4058


    127th Session, 2019
    World Customs Organization (Customs Co-operation Council)
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to terminate his fixed-term appointment for serious misconduct.

    Judgment keywords

    Keywords:

    disciplinary procedure; misconduct; termination;



  • 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.

    Judgment keywords

    Keywords:

    misconduct; termination;



  • 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.

    Judgment keywords

    Keywords:

    disciplinary measure; misconduct;



  • Judgment 4043


    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 19

    Extract:

    As a general proposition, a provision of a staff rule or regulation founding a charge of misconduct should not be widely or liberally construed so as to capture conduct potentially at the very margins of the conduct proscribed by the rule or regulation. It should be construed only to capture conduct clearly within the boundaries of the rule or regulation.

    Keywords:

    misconduct;

    Judgment keywords

    Keywords:

    misconduct; staff representative; termination;



  • Judgment 4042


    126th Session, 2018
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to downgrade her for misconduct.

    Judgment keywords

    Keywords:

    downgrading; misconduct; staff representative;

    Consideration 16

    Extract:

    As a general proposition, a provision of a staff rule or regulation founding a charge of misconduct should not be widely or liberally construed so as to capture conduct potentially at the very margins of the conduct proscribed by the rule or regulation.

    Keywords:

    misconduct;



  • Judgment 4011


    126th Session, 2018
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to dismiss her for misconduct.

    Judgment keywords

    Keywords:

    misconduct; termination;



  • Judgment 3972


    125th Session, 2018
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns the decision to impose upon him the disciplinary measure of dismissal for misconduct.

    Judgment keywords

    Keywords:

    disciplinary measure; disciplinary procedure; misconduct;



  • Judgment 3969


    125th Session, 2018
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests the EPO’s decision to impose upon her the disciplinary measure of downgrading.

    Judgment keywords

    Keywords:

    disciplinary measure; downgrading; misconduct;



  • 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.

    Judgment keywords

    Keywords:

    disciplinary measure; downgrading; misconduct; staff representative;

    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 3964


    125th Session, 2018
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests the decision to impose on him the disciplinary measure of dismissal for serious misconduct.

    Consideration 9

    Extract:

    The overarching legal principles in a case such as the present have recently been discussed by the Tribunal in Judgment 3862, consideration 20. The Tribunal observed: “the executive head of an international organisation is not bound to follow the recommendation of any internal appeal body nor bound to adopt the reasoning of that body. However an executive head who departs from a recommendation of such a body must state the reasons for disregarding it and must motivate the decision actually reached. In addition, according to the well-settled case law of the Tribunal, the burden of proof rests on an organisation to prove allegations of misconduct beyond a reasonable doubt before a disciplinary sanction can be imposed (see, for example, Judgment 3649, consideration 14).

    Reference(s)

    ILOAT Judgment(s): 3649, 3862

    Keywords:

    burden of proof; disciplinary measure; duty to substantiate decision; final decision; misconduct; standard of proof;

    Consideration 9

    Extract:

    It is [...] 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 reasonable doubt could properly have been made by the primary trier of fact’ (see Judgment 2699, consideration 9).

    Reference(s)

    ILOAT Judgment(s): 2699

    Keywords:

    misconduct; standard of proof;

    Consideration 10

    Extract:

    In cases of found misconduct based on allegations of fraud resulting in dismissal, the Tribunal has adopted the approach, in order to determine whether a finding of guilt beyond a reasonable doubt could have been made, that it “will not require absolute proof, which is almost impossible to provide on such a matter [involving allegations of fraud or similar conduct]. It will dismiss the complaint if there is a set of precise and concurring presumptions of the complainant’s guilt” (Judgment 3297, consideration 8, and, also more recently, Judgment 3757, consideration 6).

    Reference(s)

    ILOAT Judgment(s): 3297, 3757

    Keywords:

    fraud; misconduct; standard of proof; termination;

    Consideration 13

    Extract:

    [I]t is not for the Tribunal to assume the role of fact finder and determine, itself, whether the case is made out that the complainant was guilty of the misconduct alleged. Rather 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 this case the President.

    Keywords:

    judicial review; misconduct; standard of proof;



  • Judgment 3888


    124th Session, 2017
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to dismiss her with immediate effect for misconduct.

    Judgment keywords

    Keywords:

    disciplinary procedure; misconduct;



  • Judgment 3887


    124th Session, 2017
    European Patent Organisation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests the decision to dismiss him, for misconduct, with immediate effect and with reduction of pension entitlements.

    Judgment keywords

    Keywords:

    disciplinary procedure; health reasons; misconduct;

    Consideration 16

    Extract:

    [I]n the absence of an expert psychiatric opinion that the complainant was not suffering from a psychiatric illness, it would be unlawful for the President to dismiss the complainant for misconduct, which, in this case, involves intentional behaviour, though he plainly could for unsatisfactory service.

    Keywords:

    health reasons; misconduct;



  • Judgment 3882


    124th Session, 2017
    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 with immediate effect for misconduct.

    Judgment keywords

    Keywords:

    disciplinary procedure; misconduct; termination;



  • Judgment 3881


    124th Session, 2017
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision not to grant him sick leave after his dismissal for misconduct.

    Judgment keywords

    Keywords:

    misconduct; sick leave; termination;



  • Judgment 3880


    124th Session, 2017
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the Director-General’s finding of misconduct and the imposition of the disciplinary measure of suspension without pay for two weeks, and claims excessive delay in the disciplinary and internal appeal proceedings.

    Consideration 17

    Extract:

    For a finding of misconduct to withstand scrutiny, each of the elements of the alleged misconduct must be proved beyond a reasonable doubt. As a starting point, in the case of an alleged curfew violation, the organization bears the burden of proving the existence of the curfew that was allegedly violated and that the curfew applied to the staff member. In the present case, it is clear that there were three curfews in place [...] at the material time, although one was only in force intermittently. The key issue was whether the curfew the complainant allegedly violated applied to him. The resolution of this issue is contingent on first establishing which curfew it is that the complainant allegedly breached. Given the confusion and the shifting that occurred in relation to the specific curfew allegedly breached, this was not established. Based on the evidence, there is a case to be made that the MONUC curfew did not apply to the complainant. There is also a case to be made that the UNDSS curfew did apply to the complainant. In these circumstances a finding of misconduct could not properly be made.

    Keywords:

    misconduct;

    Considerations 8-9

    Extract:

    It is “well settled case law that the burden of proof rests on an organization to prove the allegations of misconduct beyond a reasonable doubt before a disciplinary sanction is imposed” (Judgment 3649, under 14). It is also well established that a staff member accused of misconduct is presumed to be innocent (Judgment 2879, under 11) and is to be given the benefit of the doubt (Judgment 2849, under 16). It is observed that the FAO did not cite nor is there any support in the case law for its position before the Appeals Committee that the “beyond a reasonable doubt” standard did not apply in this case. Moreover, it conflates two distinct parts of the misconduct process: the finding of misconduct (if proven beyond a reasonable doubt) and the subsequent imposition of an appropriate sanction for the misconduct.
    Based on a reading of the Appeals Committee’s report and the Director-General’s impugned decision, it appears that in each instance the standard of proof applied was whether there was sufficient evidence to support the finding of misconduct. 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.

    Reference(s)

    ILOAT Judgment(s): 2849, 2879, 3649

    Keywords:

    evidence; misconduct; standard of proof;



  • Judgment 3872


    124th Session, 2017
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to dismiss him for misconduct.

    Judgment keywords

    Keywords:

    disciplinary procedure; misconduct; termination;

    Consideration 13

    Extract:

    [T]he Director-General concluded that, as a security guard, the complainant should not have used the privileged access keys, with which he was entrusted to carry out his assigned duties, to unlock the storage room and take the wine which was the property of the Organization for his personal benefit. The Director-General agreed with the HBA that that action was a violation of trust and of the complainant's responsibilities, and that the fact that his sole responsibility was the protection of security and safety of WHO premises was an aggravating factor.

    Keywords:

    aggravating circumstances; misconduct;

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Last updated: 12.08.2019 ^ top