Disciplinary measure (507, 210, 263, 389, 390, 391, 393, 395, 396, 398, 843, 969, 394, 508, 510, 511, 512, 513, 942, 514, 817, 908, 941, 943,-666)
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Keywords: Disciplinary measure
Total judgments found: 192
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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;
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)
ILOAT Judgment(s): 3649, 4247, 4362
Keywords:
beyond reasonable doubt; disciplinary measure; disciplinary procedure; standard of proof;
Judgment keywords
Keywords:
complaint dismissed; delayed advancement; disciplinary measure;
Judgment 4461
133rd Session, 2022
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the Director General’s decision to summarily dismiss him.
Consideration 5
Extract:
According to the consistent case law of the Tribunal, the burden of proof rests on an organisation to prove the allegations of misconduct beyond reasonable doubt before a disciplinary sanction can be imposed. It is equally well settled that the Tribunal will not engage in a determination as to whether the burden of proof has been met, instead, the Tribunal will review the evidence to determine whether a finding of guilt beyond reasonable doubt could properly have been made by the primary trier of fact (see, for example, Judgments 2699, consideration 9, 3882, consideration 14, 3649, consideration 14, and 4227, consideration 6). Also, a staff member accused of misconduct is presumed to be innocent (see Judgment 2879, consideration 11) and is to be given the benefit of the doubt (see Judgment 2849, consideration 16).
Reference(s)
ILOAT Judgment(s): 2699, 2849, 2879, 3649, 3882, 4227
Keywords:
disciplinary measure; presumption of innocence; role of the tribunal; standard of proof;
Judgment keywords
Keywords:
complaint dismissed; disciplinary measure; summary dismissal;
Judgment 4460
133rd Session, 2022
International Organization for Migration
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to impose upon her the disciplinary measure of discharge after due notice.
Judgment keywords
Keywords:
case sent back to organisation; complaint allowed; discharge with notice; disciplinary measure;
Consideration 8
Extract:
Inasmuch as the complainant challenges a disciplinary decision, it is recalled that consistent precedent has it that such decisions are within the discretionary authority of the executive head of an international organisation 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 dossier, or finally, whether there has been a misuse of authority (see, for example, Judgment 3297, consideration 8).
Reference(s)
ILOAT Judgment(s): 3297
Keywords:
disciplinary measure; discretion; role of the tribunal;
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;
Judgment keywords
Keywords:
complaint allowed; disciplinary measure; summary dismissal;
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.
Judgment keywords
Keywords:
complaint allowed; disciplinary measure; summary dismissal;
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;
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.
Judgment keywords
Keywords:
complaint allowed; disciplinary measure; summary dismissal;
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 keywords
Keywords:
complaint allowed; disciplinary measure; summary dismissal;
Consideration 5
Extract:
[I]t is recalled that consistent precedent has it that such decisions 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 dossier, or finally, whether there has been a misuse of authority (see Judgment 3297, consideration 8).
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 4065, consideration 5).
Reference(s)
ILOAT Judgment(s): 3297, 4065
Keywords:
disciplinary measure; discretion; role of the tribunal;
Judgment 4439
132nd Session, 2021
World Trade Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant, a former official, impugns the decision taken by the WTO’s Deputy Directors-General concerning the investigation carried out in respect of a doctor in the Organization’s Medical Service, for having breached medical confidentiality and her duty of confidentiality.
Consideration 4
Extract:
Le Tribunal note que la décision attaquée par l’intéressé devant lui – à savoir, celle d’imposer une mesure administrative à la Dre J. – ne le concerne pas directement. Cette décision s’adresse à la Dre J., qui en est la seule destinataire. Même si le requérant n’est pas d’accord avec ladite mesure, qu’il considère être trop accommodante par rapport aux résultats de l’enquête menée par le Bureau du contrôle interne, il n’a pas d’intérêt à agir contre cette décision. Comme le Tribunal l’a affirmé dans le jugement 1899, au considérant 3, «[l]es relations disciplinaires entre une organisation et un fonctionnaire ne concernent directement que ceux-ci; elles n’ont pas d’effets sur la situation juridique d’autres fonctionnaires. [Ainsi,] [l]es décisions relatives à une enquête ou à une mesure disciplinaires concernant un fonctionnaire ne sauraient [...] faire grief à d’autres fonctionnaires [et,] à défaut de grief, ceux-ci n’ont pas qualité pour recourir contre une sanction disciplinaire ou le refus d’en prononcer une.» Par ailleurs, il est de jurisprudence constante qu’une demande tendant à ce que le Tribunal ordonne l’imposition d’une sanction disciplinaire à l’encontre d’un fonctionnaire échappe, en tout état de cause, à sa compétence (voir les jugements 4313, au considérant 11, 4291, au considérant 10, 4241, au considérant 4, 3318, au considérant 12, 2811, au considérant 15, 2636, au considérant 13, et 2190, au considérant 3).
Reference(s)
ILOAT Judgment(s): 1899, 2190, 2636, 2811, 3318, 4241, 4291, 4313
Keywords:
cause of action; competence of tribunal; disciplinary measure; impugned decision; request to subject someone to disciplinary proceedings;
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;
Judgment keywords
Keywords:
complaint allowed; decision quashed; disciplinary measure; health reasons; medical grounds; misconduct; termination of employment; termination of employment for health reasons;
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 4406
132nd Session, 2021
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant impugns the decision to impose upon him the disciplinary measure of reduction in grade.
Judgment keywords
Keywords:
complaint dismissed; disciplinary measure; disciplinary procedure; domestic worker; investigation;
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 keywords
Keywords:
complaint dismissed; criminal sanction; disciplinary measure; private life; termination of employment;
Judgment 4373
131st Session, 2021
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to issue a written censure against him for breaches of his obligation to protect OPCW confidential information.
Consideration 10
Extract:
A final decision maker can refer to other documents which, when taken together with such reasons for decision as are given by the decision maker, can constitute the reasons for decision (see, for example, Judgment 4081, consideration 5). But the Tribunal’s approach is influenced by the circumstances and the nature of the decision (see Judgment 2927, consideration 7), and the Tribunal does not recognise the aggregation of reasons from multiple sources is appropriate in relation to disciplinary decisions (see Judgment 2112, consideration 5). The Director-General did not adequately motivate his decision to censure the complainant. Accordingly, the impugned decision […] should be set aside.
Reference(s)
ILOAT Judgment(s): 2112, 2927, 4081
Keywords:
disciplinary measure; disciplinary procedure; final decision; motivation; motivation of final decision;
Judgment 4362
131st Session, 2021
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her summary dismissal for serious misconduct.
Considerations 7-8 and 10
Extract:
The relevant legal standard is beyond reasonable doubt. The role of the Tribunal in a case such as the present is not to assess the evidence itself and determine whether the charge of misconduct has been established beyond reasonable doubt but rather to assess whether there was evidence available to the relevant decision-maker to reach that conclusion (see, for example, Judgment 3863, consideration 11). Part of the Tribunal’s role is to assess whether the decision-maker properly applied the standard when evaluating the evidence (see Judgment 3863, consideration 8).
The standard of proof of beyond reasonable doubt does not exist to create an insuperable barrier for organisations to successfully prosecute disciplinary proceedings against staff members. Indeed it should not have that effect. What is required is discussed in many judgments of the Tribunal. 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 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.
[...]
The standard of beyond reasonable doubt concerns both the finding of specific facts and the overall level of satisfaction that the case against the staff member has been made out. In relation to the proof of any essential relevant fact, the person or body charged with the task of assessing the evidence and making a decision in the context of determining disciplinary proceedings must be satisfied beyond reasonable doubt that a particular fact exists.
Reference(s)
ILOAT Judgment(s): 3863
Keywords:
beyond reasonable doubt; disciplinary measure; misconduct; standard of proof;
Judgment 4360
131st Session, 2021
International Criminal Court
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges her summary dismissal for serious misconduct.
Considerations 10-11
Extract:
The standard of proof of beyond reasonable doubt does not exist to create an insuperable barrier for organisations to successfully prosecute disciplinary proceedings against staff members. Indeed it should not have that effect. What is required is discussed in many judgments of the Tribunal. 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 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.
[...]
The standard of beyond reasonable doubt concerns both the finding of specific facts and the overall level of satisfaction that the case against the staff member has been made out. In relation to the proof of any essential relevant fact the person or body charged with the task of assessing the evidence and making a decision in the context of determining disciplinary proceedings must be satisfied beyond reasonable doubt that a particular fact exists.
Keywords:
beyond reasonable doubt; disciplinary measure; misconduct; standard of proof;
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.
Judgment keywords
Keywords:
complaint dismissed; disciplinary measure; harassment; misconduct;
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 4310
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:
The complainant seeks reinstatement at the ILO. As a rule, an official dismissed on disciplinary grounds whose dismissal is set aside is entitled to be reinstated. However, the Tribunal may refuse to make such an order if reinstatement is no longer possible or if it is inappropriate. According to the Tribunal’s case law, reinstatement is inadvisable when an employer has valid reasons for losing confidence in an employee (see, in particular, Judgments 1238, under 4, and 3364, under 27) [...].
Reference(s)
ILOAT Judgment(s): 1238, 3364
Keywords:
disciplinary measure; reinstatement; termination of employment;
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 4279
130th Session, 2020
European Organisation for the Safety of Air Navigation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant challenges the decision to reject her internal complaint of psychological harassment.
Consideration 11
Extract:
[T]he complainant is wrong to believe there is a contradiction between the dismissal of her harassment complaint and the Director General’s decision to issue a written reprimand to Mr V. after the investigation report was submitted.
It is true that Mr V. received a reprimand [...], even though the investigators had found that there was no need for a disciplinary sanction in this case. In view of the requirements inherent in the principle of equal treatment, the Director General considered that he should treat Mr V.’s behaviour in specifically addressing the complainant as a woman during the incident [...] as misconduct. The Director General also deemed Mr V.’s failure to account for that conduct when he was questioned about it during the meeting [...] as inappropriate, given the duties owed by the Principal Director of Resources to staff unions.
Needless to say, it is not for the Tribunal to rule on whether the sanction imposed on Mr V. was warranted, since it has not been impugned before it. However, the Tribunal observes that, in any event, the misconduct of which Mr V. is accused [...] cannot be regarded as constituting psychological harassment of the complainant. There is therefore no contradiction between the imposition of that sanction and the rejection of the internal complaint [...] seeking recognition of such harassment.
Keywords:
disciplinary measure; harassment;
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;
Considerations 11-12
Extract:
The complainant is [...] of the view that the decision is flawed because [...] WIPO failed to prove her misconduct beyond a reasonable doubt. [...] In relation to the [...] point the complainant made, as stated in Judgment 3882, in consideration 14:
“It is settled principle that the organization must prove its case against a complainant in a disciplinary matter such as this beyond a reasonable doubt. The complainant argues that the [organization] did not meet that standard of proof in the present case. The Tribunal’s approach when this issue is raised was stated, for example, in consideration 14 of Judgment 3649, as follows:
‘At this juncture, it is useful to reiterate the well settled case law that the burden of proof rests on an organization to prove the allegations of misconduct beyond a reasonable doubt before a disciplinary sanction is imposed. It is equally well settled that the “‘Tribunal will not engage in a determination as to whether the burden of proof has been met, instead, the Tribunal will review the evidence to determine whether a finding of guilt beyond a reasonable doubt could properly have been made’ (see Judgment 2699, consideration 9).”
However, at this juncture, it must also be noted that WIPO’s Staff Rule 10.1.2(d) expressly provides that the applicable standard of proof in disciplinary proceedings is “clear and convincing evidence”.
In the present case, based on a comprehensive investigation, IOD found that there was “clear and convincing evidence that [the complainant] was absent from work without a proper authorization 80 times between 1 October 2014 and 31 March 2015” and that, “[i]n each of [these] instances, [she] had misrepresented her presence at work through e-Work ‘omission to clock’ submissions”. The Tribunal has reviewed the IOD’s investigation report and the extensive evidence referenced in that report. The Tribunal agrees with IOD’s characterization of the evidence as being, at a minimum, “clear and convincing evidence” regarding the complainant’s conduct. It is clear that the facts underlying the 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 a reasonable doubt was met.
Reference(s)
ILOAT Judgment(s): 2699, 3649, 3882
Keywords:
burden of proof; disciplinary measure; disciplinary procedure; misconduct; standard of proof;
Judgment 4244
129th Session, 2020
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Summary: The complainant contests the decision to relegate her by two salary steps.
Judgment keywords
Keywords:
complaint allowed; decision quashed; disciplinary measure;
Consideration 4
Extract:
Regarding the severity of the sanction, 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).
Reference(s)
ILOAT Judgment(s): 3640, 3944, 3953, 3971
Keywords:
disciplinary measure; proportionality;
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