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A lack of cooperation is not always a relevant circumstance in every case to be taken as aggravating factor. Sometimes, if the lack of cooperation is not serious, it may not be taken as an aggravating circumstance. However, the nature of the case may affect how lack of cooperation during an investigation is viewed. Being dishonest and misleading during the investigation may be considered serious and be taken as a ground of aggravation. Therefore, it cannot be concluded that a lack of cooperation can never be considered as an aggravating circumstance.

While the Appeals Tribunal has repeatedly found that the proportionality of a sanction is usually within the discretion of the Administration, this discretion is not absolute, and, in particular circumstances, a sanction may be changed after judicial review by the Dispute Tribunal. The Administration has an obligation to act in good faith and comply with applicable laws.

The Applicant argued that the imposed sanction is disproportionate to the offense. He claimed that the practice of the High Commissioner in similar cases shows that “no one else ever” was separated for similar conduct.

The Tribunal found that the High Commissioner did not err when he based his sanction on the past practice of the Secretary-General. The Secretary-General's practice demonstrates that separation from service was not an excessive sanction for cheating in a competitive recruitment exercise setting.