Judgment No. 3312
1. The decision contained in the Registrarís letters dated 31 October 2011 and 11 January 2012 is set aside.
2. The ICC shall remove the copy of the said letter of 31 October 2011 from the complainantís official status file.
3. The ICC shall pay the complainant 6,000 United States dollars in costs.
4. The complaint is otherwise dismissed.
The disciplinary sanction taken by the Executive Head departing from the recommendation of a disciplinary board is cancelled for lack of sufficient reasons.
disciplinary measure; motivation
In Judgment 2495, under 9(b), the Tribunal held that in taking a decision at the outcome of disciplinary proceedings, an Executive Head, such as the Registrar, is not bound by the recommendations of a disciplinary board. The Registrar may depart from them if another solution is considered to be more appropriate to ensure the satisfactory running of the Organization. The Tribunal will not substitute its assessment for that of the Registrar, unless it notes a clear disproportion between the gravity of the offence committed and the severity of the penalty imposed by the Registrar. However, a Registrar who departs from a recommendation of a board, as in this case, must state the reasons for disregarding it. One purpose which is served by this requirement to give reasons is to enable the Tribunal to evaluate whether the decision is proportionate in the event that the decision is challenged in the Tribunal (see, for example, Judgment 2391, under 8). In this case, the Registrar motivated her decision for departing from the recommendation of the DAB, but gave insufficiently cogent reasons for issuing the reprimand and warnings to the complainant.
ILOAT Judgment(s): 2391, 2495
competence of tribunal; disciplinary procedure; executive head