Judgment No. 1984
THE COMPLAINT IS DISMISSED.
The complainant was dismissed for serious misconduct. He argues that the German criminal law would have taken into account mitigating circumstances, something the organisation failed to do. "Although under German criminal law these facts might remove or mitigate the penal nature that could attach to the offence of attempted fraud, when disciplinary sanctions are applied it is immaterial whether or not an act is criminal. Furthermore, the fact that the organisation in the end suffered no financial injury because it did not have to pay out money it did not owe, does not mean that the complainant's misconduct should not have been sanctioned."
lack of injury; domestic law; separation from service; termination of employment; misconduct; mitigating circumstances; serious misconduct; disciplinary measure
The Tribunal recalls that, according to a long line of precedent, shared by other international administrative tribunals, 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. But that discretion must be exercised in observance of the rule of law, particularly the principle of proportionality. If a sanction is obviously disproportionate to the charges, the Tribunal will set it aside (see for example Judgment 1447 [...], delivered on 6 July 1995). In the present case, the complainant's dismissal is not obviously disproportionate to the attempted fraud with which he is charged and which is a serious breach of the duty of honesty incumbent on international civil servants. Consequently, the complainant's plea of disproportionality between the charges and the sanction fails.
ILOAT Judgment(s): 1447
proportionality; termination of employment; disciplinary measure; discretion