Judicial oversight of the proportionality of disciplinary action to the offense A comparative analytical study

Abstract

Judicial oversight of the proportionality of disciplinary measures to the offense is one of the most fundamental guarantees of the rights of public sector employees. It is not enough for a disciplinary decision to be issued by a competent authority and to comply with the law in terms of procedures; the imposed penalty must also be proportionate to the severity of the offense and its consequences. This oversight is embodied in the administrative judge's authority to modify or revoke any penalty deemed excessive or inappropriate, thus achieving a balance between the administration's power to discipline its employees and ensuring respect for the principle of proportionality, which embodies the spirit of justice and legality. When the administration carries out its work and exercises the powers assigned to it by the legislator, it must respect legitimacy, that is, respect the law, whether in its relationship with people outside the administration itself, or the administration’s relationship with employees within it, which is usually through administrative decisions that are mainly related to the professional path of the public employee, as they entail legal effects, either cancellation, modification, or the creation of legal positions that directly affect the public employee, either positively or negatively, such as disciplinary decisions in the public service, which impose a kind of punishment on the public employee.