CYIL vol. 14 (2023)

JAN HLADÍK CYIL 14 (2023) Resources Management, makes a recommendation to the Director-General. This recommendation may propose initiation of disciplinary proceedings if the allegations of misconduct, based on report, are substantiated; or, to close the case, if based on the report, the allegations on misconduct are not substantiated. In the latter case, the Assistant Director General for Administration and Management may recommend appropriate administrative and/or other managerial measures and is required to inform, in writing, the staff member concerned of the closure of the case as well as of any administrative or managerial measure. In case of initiating disciplinary proceedings, the Director of Bureau of Human Resources Management must communicate to the staff member concerned a letter of charge informing him/her of the allegations against him/her and his/her right to respond as well as of his/her right to seek assistance from a staff member or a former staff member. The charge letter must contain in annex a copy of the investigation report together with its annexes. The staff member must be given a specified time to answer the allegations and to produce countervailing evidence. He/she must normally be allowed at least twenty working days upon notification of the charge letter to respond to the allegations. If necessary, he/she may ask for an extension, explaining why he/she is unable to comply with the deadline. At the end of the investigation, the Director of Bureau of Human Resources Management recommends to the Assistant Director-General for Administration and Management one of the three measures for the Director-General’s decision: • to exonerate the staff member concerned of allegations of misconduct and to close the matter. The Director of Bureau of Human Resources Management may also recommend appropriate administrative and/or other managerial measures; • into account any aggravating or mitigating circumstances; or, • to impose the disciplinary measure of summary dismissal if serious misconduct has occurred and it gravity or the consequences thereof warrant immediate separation from service. Finally, in case of imposition of a disciplinary measure, and in case of financial loss caused to the Organization as a result of the misconduct, the Director of Bureau of Human Resources Management may also recommend financial recovery 22 , as applicable. ILOAT case law’s most important conclusions on sanctions may be summarized as follows: • “The proportionality of the disciplinary measure to the offence is within the discretionary authority of the Director-General. The Tribunal may only interfere with it if it was taken without authority, violates a rule of form or procedure, or is based on an error of fact or of law, or if essential facts have not been taken into consideration, or if it is tainted with misuse of authority, or if a clearly mistaken conclusion has been drawn from the facts.” 23 ; 22 Rule 101.2 ( Financial responsibility ) of the Staff Regulations and Staff Rules reads as follows: “Any staff member, who, either deliberately, or by gross negligence, or by recklessness, fails to observe any regulation, rule or administrative procedure of the Organization, and involves the Organization in unnecessary liability, expense or loss, shall be held responsible, and may be required to pay compensation therefor.” 23 ILOAT Judgment 1878, Consideration 19, available through the ILOAT website at https://www.ilo.org/ tribunal/lang--en/index.htm. Website visited on 17 July 2023.

86