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Mitigating circumstances (393,-666)
You searched for:
Keywords: Mitigating circumstances
Total judgments found: 18
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:
[T]he complainant’s previous period of unblemished service with the [Organization] was not, by itself, a mitigating factor (see Judgment 3083, consideration 20), even though in some cases it can be (see Judgment 4457, consideration 20).
Reference(s)
ILOAT Judgment(s): 3083, 4457
Keywords:
disciplinary measure; mitigating circumstances; performance;
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.
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 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 17
Extract:
[T]he evidence shows that the complainant can refer to significant mitigating circumstances, which should be given due consideration in accordance with both the general principles applicable in disciplinary matters and the express provisions of Staff Rule 12.3.2(7), which states that “in reaching his decision, the Secretary General shall take into account any evidence in the official’s defence”.
Keywords:
disciplinary measure; mitigating circumstances;
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 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.
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 15
Extract:
The Tribunal accepts that, generally, the conduct and attitude of a hierarchical superior does not exculpate a member of staff who has engaged in misconduct even though it is approved by that superior. It also accepts, as decided in Judgment 3083, that a member of staff whose duties included dealing with and managing the funds or other property of an organisation should adhere to normative legal or other instructional documents concerning how those funds and property should be disbursed and managed. Moreover, a failure to do so could well warrant summary dismissal. Additionally, that failure could be characterised as a serious breach of trust.
Reference(s)
ILOAT Judgment(s): 3083
Keywords:
mitigating circumstances; supervisor;
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 4415
132nd Session, 2021
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to impose upon him the disciplinary measure of dismissal for misconduct.
Consideration 12
Extract:
In appropriate cases, the health of a staff member who is the subject of disciplinary proceedings can be a mitigating factor (see, for example, Judgments 4051 and 3602) but not always (see, for example, Judgment 1984). It was in the present case. The need for the complainant to have recourse to medicinal cannabis is certainly relevant to the first set of charges. The meaning of the emphasised words in consideration 9, above, is far from clear. But their import appears to be that the complainant would have been aware of the consequences of his actions, notwithstanding his medical condition, the pain it generated and the need to lessen or eliminate that pain. But his medically sanctioned recourse to medicinal cannabis plainly feeds into the question of the degree or extent of his culpability for attending the EPO premises under the influence of that drug and, indeed, consuming or storing that drug on those premises.
Reference(s)
ILOAT Judgment(s): 1984, 3602, 4051
Keywords:
disciplinary measure; health reasons; mitigating circumstances;
Consideration 14
Extract:
The approach taken by the President to the question of the relevance of the complainant’s health and whether there were any mitigating circumstances or factors was significantly flawed. The impugned decision rejecting the request for review of the decision to dismiss the complainant for misconduct will be set aside.
Keywords:
disciplinary measure; final decision; health reasons; mitigating circumstances;
Judgment 3953
125th Session, 2018
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to impose upon her the disciplinary measure of downgrading and to recover from her undue payments through monthly deductions from her salary.
Consideration 13
Extract:
Regarding the question of the complainant’s health condition and the Disciplinary Committee’s failure to seek an expert medical opinion, the Tribunal notes that the Disciplinary Committee took account of the complainant’s state of health as a mitigating factor when deciding the proportionality of the recommended sanction.
Keywords:
disciplinary measure; health reasons; mitigating circumstances;
Judgment 3602
121st Session, 2016
World Trade Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, a former employee of the WTO, contests the Director-General’s decision to summarily dismiss him for serious misconduct.
Consideration 22
Extract:
The Tribunal has stated, in Judgment 210, for example, that even in a case in which serious misconduct is alleged, staff rules provide a wide range of penalties and it is therefore necessary to apply the principle of proportionality to ensure that the extreme penalty of summary dismissal is applied only in the gravest cases. Thus the following was stated in Judgment 210, under 6:
“[W]hen these mitigating factors are put into the scale together with the lack of any corrupt motive and the complainant’s previous good record, they cause the sentence of summary dismissal to appear out of all proportion to the degree of misbehaviour in this case.”
Reference(s)
ILOAT Judgment(s): 210
Keywords:
mitigating circumstances;
Judgment 3106
113th Session, 2012
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 9
Extract:
"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."
Keywords:
freedom of speech; liability; limits; mitigating circumstances; moral injury; publication; respect for dignity;
Judgment 3083
112th Session, 2012
United Nations Industrial Development Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 20
Extract:
The complainant makes two further arguments, namely, that there are mitigating or other factors that would warrant a less severe sanction than summary dismissal and that summary dismissal was disproportionate to the findings made by the Director-General. In this context, it is appropriate to note that the Director-General’s decision of 6 May 2009 must be set aside to the extent that it upheld the finding with respect to irregular bidding documents. So far as concerns the factors which, it is said, would warrant a lesser penalty, the Tribunal sees no merit in the argument that the complainant’s previous excellent record should have been taken into account or that regard should have been had to the subsequent action of the Administration to introduce procurement training or the fact that his actions had been approved by his supervisors.
Keywords:
mitigating circumstances;
Judgment 2601
102nd Session, 2007
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 9-10
Extract:
"It is hard to deny the complainant's misconduct: acts of rudeness and violence are naturally unacceptable in the workplace, whether in an international organisation or any other institution. It is particularly unacceptable for a supervisor to come to blows with a staff member under his supervision, and to strike him in the face as he did in the present case. [...] [I]t has not been established that [the complainant] merely defended himself from attack. As once again the Joint Advisory Committee found, 'even if [the complainant] was truly in a situation of self-defence, his reaction should have been proportionate to the assault. He should have tried to leave the premises without engaging in a fight and, if obliged to defend himself, he should merely have tried to bring his opponent under control without striking him to the point of causing him injury.'
[...] [T]he complainant could undoubtedly find mitigating circumstances in [his subordinate]'s attitude of insubordination, or even provocation, but that behaviour was in any case not such as to justify resorting to physical assault, which the defendant organisation could not tolerate on the part of a staff member entrusted with major responsibilities. The Tribunal in the circumstances is therefore unable to find that the sanction incurred by the complainant was clearly out of proportion (see Judgment 1725 for a similar situation)."
Reference(s)
ILOAT Judgment(s): 1725
Keywords:
conduct; disciplinary measure; insubordination; misconduct; mitigating circumstances; proportionality; serious misconduct; staff member's duties; supervisor;
Judgment 2350
97th Session, 2004
European Free Trade Association
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 18
Extract:
The Administration accessed the complainant's computer while she was on sick leave. The Tribunal considers that "the events which occurred during the complainant's absence on sick leave were most unfortunate. However [...] it is understandable that, given the urgency attending the Sub-Committee meeting preparations on which the complainant was working, her computer was accessed. [The] matter could and should have been handled with greater sensitivity and with proper regard to the complainant's privacy. Even so, those events fall far short of establishing hostility amounting to harassment."
Keywords:
confidential evidence; formal requirements; lack of evidence; mitigating circumstances; organisation's duties; respect for dignity; sick leave; working relations;
Judgment 1984
89th Session, 2000
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
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."
Keywords:
disciplinary measure; domestic law; lack of injury; misconduct; mitigating circumstances; separation from service; serious misconduct; termination of employment;
Judgment 1639
83rd Session, 1997
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11
Extract:
The Director-General took the view that since the complainant admitted misconduct there was no need to give her any opportunity of defending herself. "The defendant's argument is mistaken. Before it notified to her the decision of summary dismissal it had brought no charges against her, and she therefore had no case to answer. And once it had made the decision to dismiss her without giving her a prior hearing, it had already acted in breach of due process. [...] An international organisation must inform the staff member of any charges it is levelling against him and give him the opportunity of answering before it takes any disciplinary action: audi alteram partem is a requirement it must observe in all circumstances. [...] Even though she had admitted to the incident, she did not on that account forfeit her right to be heard, be it to make a plea in mitigation or to give her own version of the facts or to raise any other issue she wished in her own defence."
Keywords:
adversarial proceedings; complainant; disciplinary measure; duty to inform; mitigating circumstances; organisation's duties; right; right to reply; serious misconduct; summary dismissal; termination of employment;
Judgment 210
30th Session, 1973
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary
Extract:
The Tribunal holds that the four crucial representations were false; the complainant bore responsibility for the four misrepresentations and they could have had serious consequences for relations between the organization and the government, all of which constitutes misconduct. But the complainant's motives were not corrupt and his previous record was satisfactory. Account should have been taken of attenuating circumstances. Summary dismissal was out of all proportion to the degree of misbehaviour.
Keywords:
contract; duty of discretion; fixed-term; misrepresentation; mitigating circumstances; proportionality; serious misconduct; summary dismissal; termination of employment;
Consideration 5
Extract:
The question is whether the sanction imposed "gives adequate weight, not only to the nature of the misconduct taken by itself, but [also] to the extent to which in the circumstances of this case the complainant should be held to blame. In this connection there are mitigating factors which [...] the Director-General [does] not appear to have taken into account.
Keywords:
disciplinary measure; mitigating circumstances; proportionality; serious misconduct; termination of employment;
Judgment 203
30th Session, 1973
International Labour Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 2
Extract:
"[T]he seriousness of the complainant's misconduct cannot be evaluated without taking into account the extenuating circumstances. [T]he complainant did not appear to be unfit for employment [in the organisation], and therefore in discharging him the Director did not observe the principle of proportionality."
Keywords:
mitigating circumstances; proportionality; serious misconduct; termination of employment;
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