Judgment No. 4504
Decision
1. The impugned decision will be set aside to the extent stated in consideration 17 of the judgment and the matter will be remitted to WIPO for reconsideration in light of this judgment.
2. WIPO shall, by way of material damages, reimburse the complainant all salaries and allowances which she would have been paid if the disciplinary sanction of demotion had not been imposed upon her.
3. WIPO shall pay the complainant 8,000 Swiss francs in costs for the proceedings before the Tribunal.
4. WIPO shall also pay the complainant a half of the legal costs which she incurred in the internal appeal proceedings, deducting therefrom the amount it had already paid her for such costs.
5. All other claims are dismissed.
Summary
The complainant challenges the decision to demote her from grade P4 to grade P3 for a period of two years.
Judgment keywords
Keywords
complaint allowed; disciplinary measure; demotion
Consideration 4
Extract:
Under the Tribunal’s case law, legal costs for internal appeal proceedings may be awarded only in exceptional circumstances (see, for example, Judgment 4369, consideration 22). Such circumstances are not evident in this case. However, in awarding the complainant eight hours of legal fees, in the impugned decision, the Director General stated that that decision “was taken on an exceptional basis, as legal costs are not normally compensated at the stage of the internal proceedings before the Board” but that he took the decision “in light of the fact that [the complainant] challenged before the Board a disciplinary measure with a financial component and also because [she] succeeded in part”. The Director General thereby provided the basis for awarding the complainant eight hours of legal costs without indicating how he arrived at that amount. Given that the internal appeal resulted in a substantial reduction of the original demotion period it was reasonable, in the Tribunal’s view, to award the complainant a half of the legal costs which she incurred in the internal appeal, deducting therefrom the amount already paid to her for such costs. The Tribunal will so order.
Reference(s)
ILOAT Judgment(s): 4369
Keywords
costs for internal appeal procedure
Consideration 6
Extract:
Consistent precedent has it that decisions which are made in disciplinary cases are within the discretionary authority of the executive head of an international organization and are subject to limited review. The Tribunal must determine whether a decision taken by virtue of a discretionary authority was taken with authority, is in regular form, whether the correct procedure has been followed and, as regards its legality under the organisation’s own rules, whether the Administration’s decision was based on an error of law or fact, or whether essential facts have not been taken into consideration, or again, whether conclusions which are clearly false have been drawn from the documents in the file, or finally, whether there has been a misuse of authority. Additionally, the Tribunal will not interfere with the findings of an investigative body in disciplinary proceedings unless there is manifest error (see, for example, Judgment 4444, consideration 5).
Reference(s)
ILOAT Judgment(s): 4444
Keywords
disciplinary measure; discretion; role of the tribunal
Consideration 10
Extract:
Inasmuch as the Appeal Board’s role in an internal appeal is an advisory one, the Director General may depart from its recommendations provided that she or he must state clear and cogent reasons for doing so (see, for example, Judgment 2699, consideration 24).
Reference(s)
ILOAT Judgment(s): 2699
Keywords
disciplinary measure; final decision; motivation; disciplinary body
Consideration 11
Extract:
Regarding the severity of the disciplinary measure, 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). The question is whether or not, in the instant case, the sanction of demotion from grade P4 to P3 imposed upon the complainant for a period of two years was disproportionate to the misconduct that was established. In reviewing the proportionality of the sanction, 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. 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 (see Judgment 4478, consideration 11, and the case law cited therein).
Reference(s)
ILOAT Judgment(s): 3640, 3944, 3971, 4478
Keywords
proportionality; disciplinary measure
Consideration 17
Extract:
[T]he impugned decision will be set aside to the extent that it found that demotion from grade P4, step PP1 to grade P3, step PP2 for a period of two years was a proportionate disciplinary measure. The matter will be remitted to WIPO for reconsideration of whether, in all the circumstances, any lesser disciplinary sanction should be imposed and, if so, what.
As a result of setting aside the impugned decision to the extent determined in this consideration, WIPO will be ordered to reimburse the complainant, as material damages, all salaries and allowances which she would have been paid if the disciplinary sanction of demotion was not imposed upon her.
Keywords
decision quashed; disciplinary measure; material damages
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