CYIL vol. 14 (2023)

JAN HLADÍK CYIL 14 (2023) (a) When examining the relevant provisions of the Administrative Manual the alleged breach of was the basis for the Director-General’s decision to dismiss summarily the complainant, the Tribunal came to the conclusion (cf. paragraphs 3–7 of Considerations of the Judgment) that the complainant did not actually breach (with one slight exception) the relevant provisions of the Administrative Manual. The Tribunal found that while the complainant was not without reproach (Consideration 8), “the fact that the penalty imposed by the Director-General largely rested, as stated above on erroneous considerations concerning the breach of various provisions, affects the lawfulness of the impugned decision. This alone would warrant its setting aside.” (Consideration 9) (b) The Tribunal found that the Administration committed a blatant error in the legal characterisation of the facts leading to the complainant’s conduct being considered as constituting serious misconduct for the purposes of the application of Chapter X of the Staff Regulations and Staff Rules of UNESCO, concerning disciplinary measures (Consideration 10). Consideration 11 refers to two previous Judgments (Judgment 63, Consideration 1; and, Judgment 1661, Consideration 6) as well as to paragraphs 14 and 15 of Item 11.3 of Chapter 11 of the UNESCO Human Resources Manual, consistent with the above case law. The latter “indicate that the summary dismissal of a member of the staff should only be pronounced in the event that misconduct has occurred and “the gravity or consequences thereof warrant immediate separation from service ” (emphasis added).” Those two conditions are conjunctive. Paragraph 12 of Considerations states that “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.” Paragraphs 13–15 of Considerations provide for different mitigating circumstances such as the fact that the computer equipment in question was earmarked to be scrapped and had no market value; the contract did not specify any payment, thus excluding personal enrichment of the complainant or the good faith of the complainant. In paragraph 16 of Considerations, the Tribunal concludes that the complainant’s error “cannot be classified as serious misconduct”. (c) In paragraph 17 of Considerations the Tribunal makes a very important finding – namely, that “reasoning for this decision (summary dismissal – JH) between the finding of misconduct – which, it is true, cannot depend on the consideration of possible mitigating circumstances – and the assessment of the seriousness of that misconduct – which must, in contrast, necessarily take account of such circumstances where they exist.”; (d) lack of proportionality between the misconduct and the sanction imposed The Tribunal underscores in paragraph 20 of Considerations that “the penalty of summary dismissal, which is the most severe penalty applicable to members of the UNESCO staff, was in this case disproportionate in view of the seriousness of the facts” and reiterates the fundamental principle applicable in disciplinary cases that

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