Ä¢¹½ÊÓƵAT Held or Ä¢¹½ÊÓƵDT Pronouncements
As a preliminary matter, Ä¢¹½ÊÓƵAT rejected an application by the Staff Union of the ICTY for leave to file a friend-of-the court brief under Article 17 of its Rules of Procedure on the scope of review of the Secretary-General¡¯s decision in disciplinary proceedings and the standard of proof in disciplinary proceedings, on the basis that the facts and legal issues were not so complex that the brief would assist it. Ä¢¹½ÊÓƵAT held that Ä¢¹½ÊÓƵDT, in exercising judicial review, may interfere with the exercise of the Secretary-General¡¯s discretion in disciplinary proceedings against a staff member on the ground that the disciplinary measure is not proportionate to the misconduct, however, Ä¢¹½ÊÓƵDT must show due deference to the Secretary-General¡¯s decision. Ä¢¹½ÊÓƵAT held that it could not overlook the fact that the Appellant was a Procurement Officer at the P-4 level in the Procurement Section of MONUC and held senior positions as Chief of the Contracts Unit and later Chief of the Supplies Service Unit. Ä¢¹½ÊÓƵAT noted that the Appellant occupied a position of trust and great financial responsibility and was called upon to take an important financial decision, therefore, a high standard of conduct and integrity was expected from him. Ä¢¹½ÊÓƵAT held that the Appellant¡¯s actions were a serious breach of the Staff Regulations and the Procurement Manual. Ä¢¹½ÊÓƵAT held that the Appellant¡¯s misconduct was serious and the disciplinary measure of summary dismissal was not disproportionate. Ä¢¹½ÊÓƵAT allowed the appeal, set aside the Ä¢¹½ÊÓƵDT judgment and affirmed the Secretary-General¡¯s decision to summarily dismiss the Appellant.
Decision Contested or Judgment/Order Appealed
The Applicant challenged his dismissal for serious misconduct for entering into a currency exchange transaction with a vendor paid USD 3.4 million by MONUC between 2002 and 2007. Ä¢¹½ÊÓƵDT found that the acts did not amount to serious misconduct and that the penalty of summary dismissal was disproportionate to the conduct.
Legal Principle(s)
The jurisprudence of the former Ä¢¹½ÊÓƵ Administrative Tribunal, though of persuasive value, is not binding precedent for Ä¢¹½ÊÓƵDT and Ä¢¹½ÊÓƵAT. The principle of proportionality means that an administrative action should not be more excessive than is necessary for obtaining the desired result. It is not the role of Ä¢¹½ÊÓƵDT to consider the correctness of the choice made by the Secretary-General amongst the various courses of actions open to him; nor is it the role of the Tribunal to substitute its own decision for that of the Secretary-General. In exercising judicial review, the role of Ä¢¹½ÊÓƵDT is to determine if the administrative decision under challenge is reasonable and fair, legally and procedurally correct, and proportionate. In judicial review, as opposed to a merit-based review, due deference is always shown to the decision-maker.