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Proportionality (210,-666)

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Keywords: Proportionality
Total judgments found: 80

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  • Judgment 4779


    137th Session, 2024
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges her dismissal for misconduct.

    Consideration 16

    Extract:

    According to the Tribunal’s case law, the 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, in particular, Judgments 4400, consideration 29, 3944, consideration 12, 3927, consideration 13, and 3640, consideration 29).
    In the present case, the Tribunal considers that the fraudulent acts referred to in consideration 15 above, although involving relatively modest amounts, constitute serious breaches of the duty of honesty incumbent on any member of the staff of an international organisation. In addition, the repeated failures by the complainant to honour private obligations were, as stated in consideration 13, liable to undermine the dignity of the status of international civil servant and tarnish the reputation of ITU. As correctly pointed out in the decision of 30 July 2021, the fact that the complainant worked in the Human Resources Management Department is an aggravating factor since it can normally be assumed that staff within that department will be particularly careful to observe the ethical standards expected of the organisation’s staff members. Lastly, although the personal difficulties referred to above might certainly be considered as a mitigating factor, the facts at issue would in any case be no less serious on that account.

    Reference(s)

    ILOAT Judgment(s): 3640, 3927, 3944, 4400

    Keywords:

    aggravating circumstances; disciplinary measure; discretion; proportionality;



  • Judgment 4770


    137th Session, 2024
    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 for misconduct.

    Consideration 20

    Extract:

    The Tribunal’s well-settled case law has it that the choice of the appropriate disciplinary measure falls within the discretion of an organization, provided that the discretion be exercised in observance of the rule of law, particularly the principle of proportionality (see Judgments 4660, consideration 16, 4504, consideration 11, 4247, consideration 7, 3640, consideration 29, and 1984, consideration 7). In reviewing the proportionality of a sanction, the Tribunal cannot substitute its evaluation for that of the disciplinary authority, and it limits itself to assessing whether the decision falls within the range of acceptability (see Judgment 4504, consideration 11).

    Reference(s)

    ILOAT Judgment(s): 1984, 3640, 4247, 4504, 4660

    Keywords:

    disciplinary measure; proportionality;



  • Judgment 4749


    137th Session, 2024
    International Criminal Court
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the termination of his appointment with compensation in lieu of notice.

    Considerations 10-11

    Extract:

    In Judgment 4478, considerations 11 and 12, the Tribunal recalled that “[t]he 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” (see also Judgment 3640, consideration 29), and that “the Tribunal cannot substitute its evaluation for that of the disciplinary authority, [as] the Tribunal limits itself to assessing whether the decision falls within the range of acceptability” (see also on this point Judgment 3971, consideration 17). In Judgment 4478, the Tribunal further observed that, although a lack of proportionality must be seen as an error of law warranting the setting aside of a disciplinary measure, “[i]n 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”. However, in Judgment 2699, consideration 15, the Tribunal emphasized that it will accord a high degree of deference to decisions concerning sanctions where the misconduct relates to issues of dishonesty, misrepresentation and a lack of integrity (see also on this point Judgment 4308, consideration 18).
    In the present case, the Tribunal notes that the sanction imposed on the complainant, although severe, was not the most serious disciplinary measure provided for in the ICC Staff Rules, which is summary dismissal for serious misconduct. Moreover, the aforementioned provisions specifically placed the complainant under duties of probity and honesty, and it is plain from the submissions and the evidence that his role in the Victims and Witnesses Section of the Registry of the Court in Côte d’Ivoire entailed the obligation to demonstrate irreproachable integrity and to conduct himself with the highest probity when, inter alia, providing proof of expenditure chargeable to the organisation. However, the complainant’s submission of falsified invoices that he himself had acquired for the purpose of providing proof of official expenditure directly undermined the trust essential to his continued relationship with the Organisation. The Tribunal therefore finds that, despite its severity, the sanction imposed was not disproportionate [...].

    Reference(s)

    ILOAT Judgment(s): 2699, 3971, 4308, 4478

    Keywords:

    disciplinary measure; disciplinary procedure; fraud; proportionality;

    Consideration 12

    Extract:

    As regards the fact that the complainant had not been involved in any other incident since he joined the ICC, which could usually constitute a mitigating circumstance, it is clear from the impugned decision that the Registrar of the Court did take this into account. Similarly, the Registrar did consider the complainant’s argument that the sums involved were relatively small and that the offending conduct had not resulted in the organisation incurring any financial loss. However, these mitigating circumstances in fact carried little weight in view of the gravity of the misconduct. Moreover, even if the fact that the complainant had acted, as he submits, at his supervisor’s instigation were to be regarded as a mitigating circumstance, this would not lead to the misconduct being considered less serious.

    Keywords:

    disciplinary measure; fraud; mitigating circumstances; proportionality;



  • Judgment 4745


    137th Session, 2024
    International Organization for Migration
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to discharge him after due notice.

    Consideration 11

    Extract:

    The Tribunal’s well-settled case law has it that the choice of the appropriate disciplinary measure falls within the discretion of an organization, provided that the discretion be exercised in observance of the rule of law, particularly the principle of proportionality (see, for example, Judgments 4660, consideration 16, 4504, consideration 11, 4247, consideration 7, 3640, consideration 29, and 1984, consideration 7). In reviewing the proportionality of a sanction, the Tribunal cannot substitute its evaluation for that of the disciplinary authority, and it 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 4504, consideration 11, and the case law cited therein). […]
    The evaluation of the weight, if any, of the extenuating circumstances falls within the discretion of the Organization. […]
    Apologizing after the events is not a mitigating factor in the absence of concrete actions by the complainant to remedy the difficult situation he created.

    Reference(s)

    ILOAT Judgment(s): 1984, 3640, 4247, 4504, 4660

    Keywords:

    disciplinary measure; mitigating circumstances; proportionality;



  • Judgment 4697


    136th Session, 2023
    European Organisation for the Safety of Air Navigation
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the Director General’s decision to impose on him the disciplinary sanction of downgrading.

    Consideration 24

    Extract:

    [W]ith regard to the complainant’s [...] plea, that the sanction imposed was unlawful and disproportionate, the Tribunal recalled, in its Judgment 4504, consideration 11, that “[l]ack 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): 4478, 4504

    Keywords:

    disciplinary measure; proportionality;



  • Judgment 4660


    136th Session, 2023
    International Criminal Police Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the Secretary General’s decision to dismiss him summarily without indemnities on disciplinary grounds.

    Consideration 16

    Extract:

    Under settled case law of the Tribunal, “[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 4504, consideration 11, 3971, consideration 17, 3944, consideration 12, and 3640, consideration 29).

    Reference(s)

    ILOAT Judgment(s): 3640, 3944, 3971, 4504

    Keywords:

    disciplinary measure; proportionality;



  • Judgment 4519


    134th Session, 2022
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to suspend her without pay.

    Consideration 2

    Extract:

    According to the Tribunal’s case law, the suspension of a staff member is an interim measure which need not necessarily be followed by a substantive decision to impose a disciplinary sanction (see Judgments 1927, consideration 5, and 2365, consideration 4(a)). Nevertheless, since it imposes a constraint on the staff member, suspension must be legally founded, justified by the requirements of the organisation and in accordance with the principle of proportionality. A measure of suspension will not be ordered except in cases of serious misconduct. Such a decision lies at the discretion of the organisation’s executive head. It is subject therefore to only limited review by the Tribunal and will not be set aside unless it was taken without authority or in breach of a rule of form or of procedure, or was based on an error of fact or of law, or overlooked some essential fact, or was tainted with abuse of authority, or if a clearly mistaken conclusion was drawn from the evidence (see aforementioned Judgment 2365, consideration 4(a),
    and Judgments 2698, consideration 9, 3037, consideration 9, and 4452, consideration 7).

    Reference(s)

    ILOAT Judgment(s): 1927, 2365, 2698, 3037, 4452

    Keywords:

    proportionality; role of the tribunal; suspension;



  • Judgment 4515


    134th Session, 2022
    International Telecommunication Union
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the conversion of his suspension with pay into a suspension without pay pending an investigation for harassment undertaken against him.

    Consideration 4

    Extract:

    The power to suspend a staff member under Staff Rule 10.1.3 is within the discretion of the Secretary-General. The grounds for reviewing the exercise of the discretionary power to suspend are limited to questions of whether the decision was taken without authority, in breach of a rule of form or procedure, was based on an error of fact or law, involved an essential fact being overlooked or constituted an abuse of authority (see, for example, Judgments 2365, consideration 4(a), 2698, consideration 9, 3037, consideration 9, and 4452, consideration 7). According to the Tribunal’s case law, the suspension of an official is a provisional measure which in no way prejudges the decision on the substance of any disciplinary measure against him (see Judgments 1927, consideration 5, and 2365, consideration 4(a)). However, as a restrictive measure on the staff member concerned, the suspension must have a legal basis, be justified by the needs of the organisation and be taken with due regard to the principle of proportionality. In order for a suspension measure to be taken, the official must be accused of serious misconduct.

    Reference(s)

    ILOAT Judgment(s): 1927, 2365, 2365, 2698, 3037, 4452

    Keywords:

    discretion; proportionality; role of the tribunal; suspension;



  • Judgment 4504


    134th Session, 2022
    World Intellectual Property Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to demote her from grade P4 to grade P3 for a period of two years.

    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:

    disciplinary measure; proportionality;



  • Judgment 4478


    133rd Session, 2022
    World Intellectual Property Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    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.

    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)

    ILOAT Judgment(s): 203, 937, 1445, 2656, 3971

    Keywords:

    disciplinary measure; proportionality;



  • Judgment 4457


    133rd Session, 2022
    United Nations Educational, Scientific and Cultural Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to summarily dismiss him.

    Consideration 20

    Extract:

    Under the Tribunal’s case law, although the disciplinary authority within an international organisation has a discretion to choose the disciplinary measure imposed on an official for misconduct, its decision must always respect the principle of proportionality which applies in this area (see, for example, Judgments 3640, consideration 29, 3927, consideration 13, and 3944, consideration 12).

    Reference(s)

    ILOAT Judgment(s): 3640, 3927, 3944

    Keywords:

    disciplinary measure; proportionality;

    Consideration 12

    Extract:

    In this case, the complainant’s misconduct clearly does not meet the criteria of gravity thus identified by the applicable provisions and the case law, especially given various mitigating circumstances from which, as the Appeals Board rightly pointed out in its opinion [...], the complainant should benefit.

    Keywords:

    mitigating circumstances; proportionality;



  • Judgment 4456


    133rd Session, 2022
    World Tourism Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests the decision to summarily dismiss her for misconduct.

    Consideration 15

    Extract:

    In one of the Tribunal’s earlier reported cases, Judgment 203 at consideration 2, the principle of proportionality was discussed in the context of the imposition of the disciplinary sanction of summary dismissal. The Tribunal noted that the imposition of the disciplinary sanction of discharge or summary dismissal could cause serious harm to the staff member and her or his family. The Tribunal observed that it was necessary for the penalty to be proportionate to the fault and that, in that case, the complainant’s misconduct could not be evaluated without taking into account the extenuating circumstances.

    Reference(s)

    ILOAT Judgment(s): 203

    Keywords:

    disciplinary measure; proportionality; summary dismissal;

    Considerations 16-17

    Extract:

    The failure of the complainant to discharge her duties in the manner specified in the charges had to be viewed in the context of the chief executive officer of the Organization, Mr R., knowing mostly how those duties were being performed, approving of how those duties were being performed and, at least in some respects, having instructed the complainant to perform them.
    […] The failure of the Secretary-General to pay any regard to Mr R.’s evidence was a serious flaw in the decision to summarily dismiss the complainant. That decision should be set aside.

    Keywords:

    mitigating circumstances; proportionality; summary dismissal;



  • Judgment 4453


    133rd Session, 2022
    World Tourism Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant contests the decision to summarily dismiss him.

    Consideration 14

    Extract:

    In one of the Tribunal’s earlier reported cases, Judgment 203 at consideration 2, the principle of proportionality was discussed in the context of the imposition of the disciplinary sanction of summary dismissal. The Tribunal noted that the imposition of the disciplinary sanction of discharge or summary dismissal could cause serious harm to the staff member and her or his family. The Tribunal observed that it was necessary for the penalty to be proportionate to the fault and that, in that case, the complainant’s misconduct could not be evaluated without taking into account the extenuating circumstances.

    Reference(s)

    ILOAT Judgment(s): 203

    Keywords:

    disciplinary measure; mitigating circumstances; proportionality; summary dismissal;



  • Judgment 4444


    133rd Session, 2022
    Food and Agriculture Organization of the United Nations
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant impugns the decision to dismiss him on disciplinary grounds.

    Consideration 12

    Extract:

    Given the preponderance of the evidence, including the complainant’s own admissions, the serious nature of his misconduct, as well as the fact that in March 2014 and prior to the commencement of the investigation in November 2014, the complainant was the subject of a written reprimand for improperly adding the spouse of a government official to a recruitment short-list, his contention that dismissal was a disproportionate measure is unfounded.

    Keywords:

    disciplinary measure; proportionality; summary dismissal;



  • Judgment 4400


    131st Session, 2021
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant, a former official of the International Labour Office, impugns the decisions of the Director-General to issue a reprimand against him, to revoke his appointment as a Director, to appoint another person to that post and, finally, to discharge him with notice.

    Consideration 29

    Extract:

    Under the Tribunal’s case law, the 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 3640, consideration 29, 3927, consideration 13, and 3944, consideration 12).

    Reference(s)

    ILOAT Judgment(s): 3640, 3927, 3944

    Keywords:

    disciplinary measure; discretion; proportionality;



  • Judgment 4351


    131st Session, 2021
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges her dismissal from service for misconduct.

    Consideration 6

    Extract:

    That [the complainant] was a senior staff member who should have been setting a good example for others, can be considered an aggravating factor. The Tribunal finds that the disciplinary sanction imposed, was based on valid grounds and did not lack proportionality.

    Keywords:

    proportionality;



  • Judgment 4343


    131st Session, 2021
    International Atomic Energy Agency
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to demote him by two grades as a disciplinary measure for harassment.

    Consideration 19

    Extract:

    [W]hereas the Director General considered that the length of the complainant’s prior satisfactory service and unblemished record could, in principle, be mitigating factors, he concluded that these factors were outweighed by other factors, including the serious incidents of harassment which were complained of. He also considered it an aggravating factor that as a senior staff member the complainant was expected to act as a role model, and that he had failed to express remorse for the incidents at any time. The Tribunal finds that based on the foregoing, the disciplinary sanction of demotion by two grades, imposed by the Director General in the exercise of his discretionary authority, was not disproportionate.

    Keywords:

    demotion; disciplinary measure; proportionality;



  • Judgment 4311


    130th Session, 2020
    International Labour Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to apply the sanction of summary dismissal to him.

    Consideration 13

    Extract:

    A question [...] arises as to whether that fraud alone was sufficient to warrant the sanction of summary dismissal. On this point, the complainant alleges that the principle of proportionality has been breached in that the sanction imposed is too severe in relation to the charges.
    Regarding the severity of a sanction, the 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 3640, under 29, 3944, under 12, 3953, under 14, 3971, under 17, and 4244, under 4).
    The concurrent use of more than one official vehicle, which [...] has been established, constitutes a serious breach of the Standards of Conduct for the International Civil Service. Article 12.7(1) of the Staff Regulations allows the sanction of summary dismissal to be applied to the staff member concerned in such a case.
    The Tribunal hence finds that the sanction imposed on the complainant is not disproportionate in this case.

    Reference(s)

    ILOAT Judgment(s): 3640, 3944, 3953, 3971, 4244

    Keywords:

    proportionality;



  • Judgment 4308


    130th Session, 2020
    World Health Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges the decision to dismiss him for misconduct.

    Consideration 18

    Extract:

    As the Tribunal said in Judgment 3640, consideration 29, “[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.” The disciplinary measure of dismissal was not disproportionate, particularly having regard to the complainant’s alteration of the email of Ms D. This was a manifestation of dishonesty and fraud and it was open to WHO, as the disciplinary authority with a power to decide the disciplinary measure, to view the totality of the complainant’s conduct as misconduct warranting dismissal.

    Reference(s)

    ILOAT Judgment(s): 3640

    Keywords:

    disciplinary measure; proportionality; termination of employment;



  • Judgment 4247


    129th Session, 2020
    World Intellectual Property Organization
    Extracts: EN, FR
    Full Judgment Text: EN, FR
    Summary: The complainant challenges her dismissal from service for serious misconduct.

    Consideration 7

    Extract:

    As to the complainant’s submissions concerning the proportionality of the decision to dismiss her, it must first be recalled, as stated in Judgment 3953, consideration 14, that:
    “[A]ccording to a long line of precedent 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. However, as stated in Judgment 3640, under 29 and 31, that discretion must be exercised in observance of the rule of law, particularly the principle of proportionality.”

    Reference(s)

    ILOAT Judgment(s): 3640, 3953

    Keywords:

    disciplinary measure; proportionality;

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Last updated: 07.03.2024 ^ top