CYIL vol. 14 (2023)

JAN HLADÍK

CYIL 14 (2023)

6. Conclusion The utmost importance of ILOAT Judgment 4457, in my view, lies in the reconfirmation of the fundamental principle of proportionality between the misconduct and the sanction imposed. Furthermore, this Judgment reconfirms two conjunctive conditions related to summary dismissal – namely, 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. It is hoped that this Judgment will influence future consideration by the UNESCO Administration of cases of misconduct and the subsequent imposition of disciplinary sanction and, in particular, scrupulous respect of the principle of proportionality. 39

39 In paragraph 18 of UNESCO document “Report by the Director-General on the Judgments concerning UNESCO issued by the International Labour Organization Administrative Tribunal (ILOAT)”, 215 EX/5. IV.INF of 9 September 2022, the Administration stated the following: “As regards the disciplinary cases, the following lessons may be drawn from the ILOAT judgments: (i) the seriousness of the offence must be assessed in light of all the relevant circumstances, taking into account aggravating and mitigating factors (the staff member’s good faith and length of service may constitute mitigating factors); (ii) the sole lack of proportionality between the offence and the disciplinary sanction (my emphasis – JH) may result in the award of significant amounts of compensation for moral and material damages.” The issue of proportionality of the sanction was also highlighted at the beginning of the following (19) paragraph by stating that “Bearing in mind this case law of ILOAT, greater emphasis is being put on assessing the proportionality of the sanction, taking into account relevant circumstances and mitigating and aggravating factors, while ensuring that the sanctions taken respond to highest standards of accountability and integrity expected from staff members.”

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