Proportionality (210,-666)
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Keywords: Proportionality
Total judgments found: 86
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Judgment 2882
108th Session, 2010
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 6
Extract:
"Although rules of procedure must be strictly complied with, they must not be construed too pedantically or set traps for staff members who are defending their rights. If these staff members break such a rule, the penalty must fit the purpose of the rule. Consequently, a staff member who appeals to the wrong body does not on that account forfeit the right of appeal (see Judgments 1734, under 3, and 1832, under 6). [...] The fact that an appeal is mistakenly submitted directly to the Appeal Board, as occurred in this case, cannot entail the irreceivability of the appeal. The Appeal Board has a duty to forward to the Director General any document which is intended for his attention and which has been sent to it in error, in order that it may be treated as a request for review."
Reference(s)
ILOAT Judgment(s): 1734, 1832
Keywords:
breach; due process; executive head; formal requirements; good faith; internal appeal; internal appeals body; interpretation; organisation's duties; proportionality; purpose; receivability of the complaint; right of appeal; staff member's duties; written rule;
Judgment 2849
107th Session, 2009
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 20-22
Extract:
The complainant was dismissed for misconduct.
"The question remains whether the sanction of dismissal was warranted in the circumstances. In Judgment 207 the Tribunal held that it is not its role to substitute one disciplinary sanction for another unless the penalty imposed is clearly out of proportion with the gravity of the offence. The Tribunal further commented in Judgment 2656, under 5, 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 [...]. 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).'"
"In the present case, the Director-General rejected the Appeals Committee's recommendation that a lesser sanction be imposed. [The] Director-General [...] observed that 'it is well established in law that unsatisfactory conduct and unsatisfactory performance are different matters with different administrative consequence'. While the Director-General's observation is correct, it does not follow that exemplary prior service is not a relevant mitigating factor in the determination of a proper sanction."
"It must be noted, however, that in the present case it was not a matter of a single transgression within the context of an otherwise unblemished career. The Director-General properly considered the incompatibility of the complainant's conduct with his role as a representative of the FAO and considered the nature of the actions of misconduct in deciding that, when taken together they justified a dismissal from service. In these circumstances, the Tribunal will not interfere."
Reference(s)
ILOAT Judgment(s): 937, 2656
Keywords:
discretion; general principle; judicial review; misconduct; proportionality; termination of employment;
Judgment 2773
106th Session, 2009
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 28
Extract:
[T]he Tribunal points out that according to firm precedent, as recalled in particular in Judgments 207 and 1984, the disciplinary authority has discretion in determining the severity of a sanction justified by a staff member’s misconduct, provided that the principle of proportionality is respected.
Reference(s)
ILOAT Judgment(s): 207, 1984
Keywords:
disciplinary measure; discretion; proportionality;
Consideration 28
Extract:
[W]ith regard to the issue of whether the measure of dismissal duly reflects the seriousness of the offences committed, the Tribunal points out that according to firm precedent, as recalled in particular in Judgments 207 and 1984, the disciplinary authority has discretion in determining the severity of a sanction justified by a staff member’s misconduct, provided that the principle of proportionality is respected. In view of the serious nature of the above-mentioned acts, and although the complainant had always been complimented on his professional abilities throughout his career, the Director-General of the FAO clearly did not exceed his discretionary authority in deciding to dismiss the complainant. The principle of proportionality has not therefore been breached.
Reference(s)
ILOAT Judgment(s): 207, 1984
Keywords:
disciplinary measure; discretion; proportionality; termination of employment;
Judgment 2745
105th Session, 2008
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 19
Extract:
"It was said in Judgment 2524 that, although harassment and mobbing do not require bad faith or prejudice or other malicious intent, 'behaviour will not be characterised as harassment or mobbing if there is a reasonable explanation for the conduct in question'. Thus, it was said in Judgment 2370 that conduct that 'had a valid managerial purpose or was the result of honest mistake, or even mere inefficiency' would not constitute harassment. However and as pointed out in Judgment 2524, 'an explanation which is prima facie reasonable may be rejected if there is evidence of ill will or prejudice or if the behaviour in question is disproportionate to the matter which is said to have prompted the course taken'."
Reference(s)
ILOAT Judgment(s): 2370, 2524
Keywords:
bias; condition; conduct; consequence; definition; evidence; good faith; grounds; intention of parties; judgment of the tribunal; mistake of fact; organisation's duties; proportionality; qualifications; respect for dignity;
Judgment 2741
105th Session, 2008
International Olive Oil Council
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5(a)
Extract:
The decision-making authority cannot disregard the opinions or recommendations it receives from advisory bodies without good reason (see Judgment 2092, under 10). Otherwise, advisory procedures would be meaningless and serve no purpose. However, such opinions or recommendations do not bind the decision-making authority to the extent of barring it from undertaking an impartial assessment of the merits of the proposals made and curtailing its obligation to examine carefully, in particular, whether the findings of fact that they contain are correct. Nevertheless, where a decision-making authority intends to disregard the recommendations of advisory bodies, it must state clearly in its decision the objective grounds that led it to opt for a divergent conclusion. In the case of a disciplinary procedure, this clearly applies not only to the appraisal of the evidence gathered but also, on the one hand, to the decision whether or not to order a penalty and, on the other, to the severity of the penalty, which should respect the principle of proportionality.
Reference(s)
ILOAT Judgment(s): 2092
Keywords:
disciplinary measure; final decision; motivation; proportionality;
Judgment 2719
105th Session, 2008
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 11
Extract:
"Standing alone, the punishment of summary dismissal, as distinct from dismissal, might be thought to be disproportionate to the misconduct of which the complainant was guilty. However, he was twice warned in writing in 1998 to improve his poor attendance record. In the same year, he was informed that the complaints received 'with regard to [...] alleged financial manipulations, fraudulent activities, police and court cases' were causing embarrassment to the Organization and he was cautioned to 'extricate [him]self from these situations'. In 2002, he was found guilty of misconduct in relation to banking transactions and issued with a written reprimand. In the light of these matters, the punishment of summary dismissal cannot be regarded as disproportionate."
Keywords:
censure; conduct; disciplinary measure; proportionality; serious misconduct; summary dismissal; warning;
Judgment 2656
103rd Session, 2007
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 5
Extract:
The complainant submits that the disciplinary measure imposed on him lacks proportionality. "In this respect, it 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)."
Reference(s)
ILOAT Judgment(s): 203, 937, 1445
Keywords:
breach; decision quashed; disciplinary measure; discretion; exception; judicial review; misconduct; proportionality; termination of employment;
Consideration 7
Extract:
The complainant was accused of having deliberately made false allegations of misconduct against other staff members. At the end of the disciplinary procedure he was dismissed for serious misconduct. "[A]lthough it is not correct to equate deliberate falsehood with reckless indifference to the truth in all circumstances, the nature of the allegations may be such that there is little, if any, room for difference in the consequent sanction. The more serious the allegation, the greater is the need for care. In the present case the allegations were indeed serious, and were of a kind which, in the absence of cogent evidence, should never have been made. That being so, there was no error in this case in equating the appropriate sanction for reckless indifference with that for deliberate falsehood. The complainant showed a callous disregard for the feelings of the persons concerned and a lack of judgement that was wholly incompatible with the standards of conduct required of an international civil servant. In the circumstances, these matters do not warrant a finding that the disciplinary action was disproportionate to the conduct in question."
Keywords:
breach; conduct; disciplinary measure; disciplinary procedure; freedom of speech; lack of evidence; liability; misconduct; official; proportionality; respect for dignity; serious misconduct; staff member's duties; termination of employment; working relations; written rule;
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 2555
101st Session, 2006
World Intellectual Property Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 12
Extract:
The complainant was dismissed. He contends that such a punishment was disproportionate. "If it is true that the complainant altered the configuration of his computer in order to use it for purposes unrelated to his duties, and in particular to visit pornographic sites and download software and music, then the sanction cannot be regarded as disproportionate."
Keywords:
disciplinary measure; organisation's reputation; proportionality; serious misconduct; staff member's duties; termination of employment;
Judgment 2391
98th Session, 2005
International Telecommunication Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 8
Extract:
The complainant was issued a written censure. "Before the Appeal Board, [he] argued that [this] decision [...] was taken in breach of the principle of proportionality. In its report, the Board recommended that the parties seek a compromise solution in the light of that principle. [T]he Secretary-General did not follow the recommendation of the Appeal Board [...]. He was therefore under an obligation to state the reasons why he was disregarding that recommendation and instead maintaining the initial sanction, which is the second most serious, particularly so as to enable the Tribunal to check whether the principle of proportionality had been observed (see Judgment 2339, under 5). As the Secretary-General has not satisfied that obligation, his decision [...] must be set aside on the grounds that no reason has been given for the chosen sanction and the case must be referred back to him for a new decision."
Reference(s)
ILOAT Judgment(s): 2339
Keywords:
breach; consequence; disciplinary measure; duty to substantiate decision; executive head; general principle; internal appeals body; judicial review; organisation's duties; proportionality; recommendation; refusal; report; settlement out of court; warning;
Judgment 2365
97th Session, 2004
Universal Postal Union
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 4(a)
Extract:
"The suspension of the complainant was an interim, precautionary measure, which was to last as long as the disciplinary procedure. It was ordered without hearing the complainant's views on the matter beforehand, but the latter's right to be heard was safeguarded since he later had an opportunity to exercise it before the impugned decision was taken. In any case, a decision to suspend need not necessarily be followed by a substantive decision to impose a disciplinary sanction (see Judgment 1927, under 5). 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 Director-General. It is subject therefore to only limited review by the Tribunal, that is to say, if 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, for instance, Judgment 2262, under 2)."
Reference(s)
ILOAT Judgment(s): 1927, 2262
Keywords:
abuse of power; breach; condition; decision; decision-maker; disciplinary measure; disciplinary procedure; discretion; disregard of essential fact; executive head; formal flaw; formal requirements; judicial review; limits; measure of distraint; mistake of fact; mistaken conclusion; misuse of authority; official; organisation's duties; period; procedural flaw; proportionality; provisional measures; right to reply; suspensive action;
Judgment 2324
97th Session, 2004
Organisation for the Prohibition of Chemical Weapons
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 13
Extract:
"A decision to place a senior officer on leave with or without pay pending a review of his or her performance is one that inevitably affects that person's dignity and good name and, moreover, it is one that will almost certainly carry adverse consequences for his or her career. Where, as here, the decision is unlawful, the person concerned is entitled to compensation. However, the measure of compensation may vary according to whether, on the one hand, the decision might otherwise properly have been taken in the circumstances or, on the other, whether it appears to have been taken for an improper purpose." [See consideration 18 for the Tribunal's appreciation of the purpose.]
Keywords:
abuse of power; amount; career; compensation; grounds; misuse of authority; moral injury; proportionality; respect for dignity; special leave; unpaid leave; work appraisal;
Judgment 2231
95th Session, 2003
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 6-7
Extract:
As far as concerns the proportionality of the penalty imposed, the case law of the Tribunal cited in the impugned decision supports even the penalty of dismissal for the offence of theft. Likewise, in Judgment 1828, the complainant was dismissed for having submitted a fraudulent travel expenses claim. The Tribunal dismissed the complaint and held that: "Even though the amount at stake was not large, an intent to defraud the Organization is a most serious offence. The Organization may expect the highest standards of integrity from its staff; it could not possibly just overlook the fraud; and there was nothing disproportionate about dismissing [the complainant] for the misconduct she had committed."
The demotion imposed on the complainant, with its accompanying transfer and the loss of commissary privileges, was not disproportionate. Her allegation that she is currently not given any work to do is devoid of any supporting detail.
Reference(s)
ILOAT Judgment(s): 1828
Keywords:
disciplinary measure; proportionality;
Judgment 1984
89th Session, 2000
European Patent Organisation
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 7
Extract:
The Tribunal recalls that, according to a long line of precedent, shared by other international administrative tribunals, 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. But that discretion must be exercised in observance of the rule of law, particularly the principle of proportionality. If a sanction is obviously disproportionate to the charges, the Tribunal will set it aside (see for example Judgment 1447 [...], delivered on 6 July 1995). In the present case, the complainant's dismissal is not obviously disproportionate to the attempted fraud with which he is charged and which is a serious breach of the duty of honesty incumbent on international civil servants. Consequently, the complainant's plea of disproportionality between the charges and the sanction fails.
Reference(s)
ILOAT Judgment(s): 1447
Keywords:
disciplinary measure; discretion; proportionality; termination of employment;
Judgment 1977
89th Session, 2000
International Atomic Energy Agency
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 10
Extract:
"The complainant's contention that the penalty of dismissal was disproportionate to the offence is wholly without merit. He defrauded his employer of substantial sums of money in circumstances that left no room for doubt that he both knew what he was doing and knew that it was wrong. When his actions came under suspicion, he falsified documents in an attempt to justify himself. His actions fell far below the standards expected of any employee let alone the high standards required of an international civil servant. the penalty of dismissal was amply warranted."
Keywords:
conduct; disciplinary measure; fitness for international civil service; misconduct; misrepresentation; proportionality; serious misconduct; termination of employment;
Judgment 1878
87th Session, 1999
United Nations Educational, Scientific and Cultural Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 30
Extract:
The complainant called her supervisor a fascist while giving the nazi salute. She was dismissed summarily. "In the Tribunal's view, while the complainant's conduct was not such as to be expected from an international civil servant, nevertheless it was not so serious as to warrant summary dismissal. Her words were intemperate, spoken in the heat of the moment to a superior. That is unacceptable. There was an insulting gesture used twice which was particularly hurtful to [her supervisor], a German. Again, that is unacceptable. But on the other hand an apology was offered the same evening and again the next morning and a written acceptance was generously given by [the supervisor]. In the opinion of the Tribunal qualifying the incident as serious misconduct justifying summary dismissal would be a clearly mistaken conclusion to draw from the facts. Therefore, the disciplinary measure imposed was so disproportionate as to amount to a mistake of law."
Keywords:
conduct; disciplinary measure; fitness for international civil service; mistaken conclusion; proportionality; serious misconduct; staff member's duties; summary dismissal; supervisor; termination of employment; working relations;
Judgment keywords
Keywords:
complaint allowed; decision quashed; disciplinary measure; proportionality; reinstatement; summary dismissal;
Consideration 15
Extract:
The complainant [...] submits that lack of proportionality is an error of law: see Judgments 203 [...], 1070 [...] and 1271 [...]. According to the Tribunal's jurisprudence, a sanction out of porportion to the subjective and objective nature of the offence is a mistake of law and since the decision is flawed it must be quashed. The complainant refers to cases where the material or moral interests of an international organisation were jeopardised and the Tribunal confirmed decisions of summary dismissal for serious misconduct: see Judgments 63 [...], 159 [...] and 969 [...]. Insulting a colleague in the privacy of his office and then offering apologies that evening and the next morning, which were accepted in writing, does not constitute serious misconduct. Her actions did not jeopardise the material or moral interests of the Organization.
Reference(s)
ILOAT Judgment(s): 63, 159, 203, 969, 1070, 1271
Keywords:
disciplinary measure; mistake of law; proportionality; serious misconduct;
Judgment 1831
86th Session, 1999
Food and Agriculture Organization of the United Nations
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 13
Extract:
The complainant was summarily dismissed from the organization for serious misconduct. "The complainant argues that the severity of the sanction imposed was disproportionate to the alleged misconduct. Given the evidence of deep-rooted fraud and corruption in the office for which he was responsible, the misconduct was serious and the sanction fully justified."
Keywords:
conduct; disciplinary measure; fitness for international civil service; misconduct; proportionality; serious misconduct; staff member's duties; summary dismissal; termination of employment;
Judgment 1828
86th Session, 1999
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 12
Extract:
"Even though the amount at stake was not large, an intent to defraud the organization is a most serious offence. The organization may expect the highest standards of integrity from its staff; it could not possibly just overlook the fraud; and there was nothing disproportionate about dismissing [the complainant] for the misconduct she had committed."
Keywords:
conduct; disciplinary measure; fitness for international civil service; misconduct; proportionality; serious misconduct; staff member's duties; summary dismissal; termination of employment;
Judgment 1791
86th Session, 1999
European Organization for Nuclear Research
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Considerations 13-14
Extract:
"The complainants plead breach of their acquired rights [...]. [T]hey argue that those terms are inviolate, particularly the clauses on pay. [...] The financial crisis [facing the Organization] at the material time did amount to exceptional circumstances that warranted the slight reduction in pay that [the Organization] applied, for only one year anyway and in consideration for extra time off."
Keywords:
acquired right; amendment to the rules; budgetary reasons; compensatory leave; contract; exception; proportionality; provisional decision; reduction of salary; salary; terms of appointment;
Judgment 1617
82nd Session, 1997
World Health Organization
Extracts: EN,
FR
Full Judgment Text: EN,
FR
Consideration 3
Extract:
"On the strength of the unfavourable appraisal non-renewal of her appointment may have seemed too harsh for someone who until then had had good reports which offered hope of improvement. So the [Organization] concluded that the right expedient was to give a shorter extension so that she might show her mettle. In coming to those conclusions on the evidence before him the Director-General did not go beyond the bounds of his discretion".
Keywords:
contract; different appraisals; discretion; duration of appointment; executive head; extension of contract; non-renewal of contract; proportionality; staff member's interest; unsatisfactory service; work appraisal;
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