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Judgment No. 4478

Decision

The complaint is dismissed.

Summary

The complainant contests the decision to impose on him the disciplinary measure of delayed advancement to the next salary step for a period of 20 months, pursuant to Staff Rule 10.1.1.

Judgment keywords

Keywords

disciplinary measure; complaint dismissed; delayed advancement

Consideration 4

Extract:

According to the Tribunal’s case law, ordering an organisation to apologize is clearly beyond the competence of the Tribunal (see, for example, Judgment 3011, consideration 6).

Reference(s)

Jugement(s) TAOIT: 3011

Keywords

apology

Consideration 4

Extract:

[A]ccording to the case law, a suspension decision has, by itself, an immediate, material, legal and adverse effect and can be challenged by itself (see, for example, Judgment 4237, consideration 8, and the case law cited therein).

Reference(s)

Jugement(s) TAOIT: 4237

Keywords

internal remedies exhausted; suspension

Considerations 7-9

Extract:

In Judgment 3106, consideration 9, the Tribunal identified two crucial aspects of the law of defamation:
“The law of defamation is not concerned solely with the question whether a statement is defamatory in the sense that it injures a person’s reputation or tarnishes his or her good name. It is also concerned with the question whether the statement was made in circumstances that afford a defence. Broadly speaking, the defences to a claim in defamation mark out the boundaries of permissible debate and discussion. As a general rule, a statement, even if defamatory in the sense indicated, will not result in liability in defamation if it was made in response to criticism by the person claiming to have been defamed or if it was made in the course of the discussion of a matter of legitimate interest to those to whom the statement was published and, in either case, the extent of the publication was reasonable in the circumstances.”
For the first aspect, it is for the organisation to prove the statement was defamatory. The standard is whether the publication of an untrue statement injures a person’s reputation or tarnishes her or his good name. Neither the complainant’s intention nor malice are essential elements of defamation. […] As stated in Judgment 2861, consideration 101, “[t]he essence of defamation is the publication of material to third parties, not to the person claiming to be defamed”. […]
For the second aspect, it is for the complainant to prove that he has a valid defence. In Judgment 3106, consideration 9, the Tribunal listed two defences: a discussion of legitimate interest and a response to criticism or attack. […] In Judgment 2751, consideration 5, the Tribunal recognised another defence, namely that statements are privileged if made in legal proceedings, and the same applies to those of internal appeal bodies, because it is necessary for the proper determination of proceedings and the issues that arise in their course:
“A litigant whose submissions contain language that is unacceptable, or ill-chosen, or damaging, or unseemly, does not thereby lose the immunity that attaches to statements made in judicial proceedings, however much the breach of good taste may be deplored.”

Reference(s)

Jugement(s) TAOIT: 2751, 2861, 3106

Keywords

intention of parties; defamation

Consideration 10

Extract:

As to the issue of the standard of proof, the complainant submits, in his fifth plea, that WIPO erred in applying the “clear and convincing” standard of proof. He adds that due to its failure to meet its prima facie obligation to prove the complainant’s misconduct beyond reasonable doubt, WIPO violated the complainant’s rights to due process and equal treatment. It is true that the Tribunal clearly stated that the applicable standard of proof is beyond reasonable doubt (see, for example, Judgment 3649, under 14, and Judgment 4247, under 11-12). But the standard of beyond reasonable doubt derived from the Tribunal’s case law as it has evolved over the decades, serves a purpose peculiar to the law of the international civil service, as stated in Judgment 4360, consideration 10, and Judgment 4362, considerations 7, 8 and 10:
“Rather the standard involves the recognition that often disciplinary proceedings can have severe consequences for the affected staff member, including dismissal and potentially serious adverse consequences on the reputation of the staff member and her or his career as an international civil servant, and in these circumstances it is appropriate to require a high level of satisfaction on the part of the organisation that the disciplinary measure is justified because the misconduct has been proved. The likelihood of misconduct having occurred is insufficient and does not afford appropriate protection to international civil servants. It is fundamentally unproductive to say, critically, this standard is the ‘criminal’ standard in some domestic legal systems and a more appropriate standard is the ‘civil’ standard in the same systems involving the assessment of evidence and proof on the balance of probabilities.”
The Tribunal notes that Staff Rule 10.1.2(d) of WIPO provides that the applicable standard of proof in disciplinary proceedings is “clear and convincing evidence”. In the present case, it is clear that the facts underlying charge of misconduct are uncontroverted. The reference by the Director General to the “clear and convincing evidence” standard does not detract from the fact that, in substance, the standard of beyond reasonable doubt was met.

Reference(s)

Jugement(s) TAOIT: 3649, 4247, 4362

Keywords

disciplinary measure; disciplinary procedure; standard of proof; beyond reasonable doubt

Considerations 11-12

Extract:

The case law confirms that the decision on the type of disciplinary action taken remains in the discretion of the disciplinary authority, as long as the measure is not disproportionate.
“[T]he 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.”
(See Judgment 3971, consideration 17.)
“[I]t may be noted that 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 (see Judgments 203 and 1445). In determining whether disciplinary action is disproportionate to the offence, both objective and subjective features are to be taken into account and, in the case of dismissal, the closest scrutiny is necessary (see Judgment 937).”
(See Judgment 2656, consideration 5.)
In her decision, the Deputy Director General considered the proportionality of the sanction in relation to various circumstances, both objectively and subjectively, namely, the nature and gravity of the misconduct involved, the circumstances in which the complainant had made the statements, the limited recipients, the complainant’s long service with a good performance record, and the expression of regrets in his response. The Tribunal notes that the Staff Rule 10.1.1 lists six possible disciplinary measures, and “delayed advancement, for a specific period of time, to the next salary step” is the second lightest disciplinary measure. The complainant’s statements constituted a breach of both Staff Regulations 1.5(a) and 11.1, namely, the obligation on staff members “to conduct themselves at all times in a manner befitting their status as international civil servants” and the duty to avoid any action which “may adversely reflect on the international civil service or which is incompatible with the integrity [...] required by their status”. Having regard to the Deputy Director General’s reasons for the application of the disciplinary measure, the Tribunal concludes that the sanction was not disproportionate.

Reference(s)

Jugement(s) TAOIT: 203, 937, 1445, 2656, 3971

Keywords

proportionality; disciplinary measure



 
Dernière mise à jour: 06.06.2022 ^ haut