The Tribunal dismissed the motion and found the application not receivable ratione temporis because (a) it was filed outside the applicable 90-day time limit as provided for by art. 8.1(d)(ii) of the Statute and (b) no extraordinary circumstances prevailed.
The Tribunal found that it was established by clear and convincing evidence that the Applicant had had sexual intercourse with two persons under the age of eighteen and that the sanction of dismissal, together with a fine, were proportionate to the established misconduct. This conclusion was independent from the outcome of the judicial proceedings before the national courts of Kosovo with respect to the violation(s) of the CCK. Standard of review of disciplinary matters: In reviewing disciplinary matters, the Tribunal must examine(1) whether the facts on which the disciplinary measure was...
UNDT held that the conduct of the Acting Chief of Mission Support and the Applicant’s direct supervisor constituted an abuse of authority in their treatment of the Applicant. Given the gross injustice meted out to the Applicant by her managers, UNDT awarded her compensation representing twelve months' net base salary. UNDT awarded the Applicant three months’ net base salary as moral damages. UNDT awarded the Applicant USD5,000 for the unfair treatment at the hands of her managers. UNDT noted that the two managers literally destroyed the Applicant’s career and made decisions in clear breach of...
Investigations in disciplinary proceedings - Investigators should obey the paramount considerations of fairness, detachment and scrupulous objectivity. Evidence of bad character or disposition to establish that show that an individual being investigated has a propensity to commit an act of misconduct should not be relied on unless a past act of misconduct is also part of the investigation. Such evidence cannot lightly be invoked or presented in a court of law and it should not influence the findings of an investigator or those whose responsibility it is to initiate disciplinary proceedings...
Standard of proof in disciplinary cases - In disciplinary proceedings it is well settled now that the evidence must be clear and convincing and that would include identification evidence. Evidence of misconduct must be clear and convincing. Findings of fact by the trial judge - As a trier of facts, a first instance judge has the means and power to assess the veracity and accuracy of a witness. The findings of fact of a trial judge should rarely be reversed on appeal unless the findings are so perverse that no reasonable person would have come to the conclusions reached on the facts by the...
Strict enforcement of time limits: time limits for formal contestation of a decision are to be enforced strictly. Exceptional cases (in relation to the waiver of time limits): according to art. 8.3 of the Tribunal’s Statute, the Tribunal may suspend or waive the deadlines for a limited period “only in exceptional cases”. The Appeals Tribunal has repeatedly found that only circumstances beyond the applicant’s control that prevented him or her from exercising the right of appeal in a timely manner may be considered exceptional circumstances justifying a waiver of the statutory time limits.
UNDT noted that notifying the Assistant Secretary-General of the Office of Human Resource Management, in a case where authority to issue a reprimand has been delegated, is not required. Even if it was, its omission could not have had any impact on the validity of the impugned decision. The Applicant had not been properly given the opportunity to comment on the facts and circumstances prior to the issuance of a written or oral reprimand, thus his right to respond embodied by staff rule 10.2(c) was not observed. The facts relevant for the decision were not established to the required standard...
The Tribunal concluded that, based on the inconsistencies identified in the complainant’s statement during the investigation, together with the absence of his testimony during the appeal, as the only direct witness apart from the Applicant, the complainant’s version of facts did not corroborate the other witnesses’ statements, except for one witness, who had only an indirect knowledge of the alleged incident. The Tribunal concluded that there was no reasonable link between the alleged physical assault and the existing injury. The Tribunal further concluded that the procedure followed was...
Have the facts on which the disciplinary measure was based been established? Regardless of the standard of proof applied, the facts of the case as recounted are undisputed. They were first established during the investigation process and confirmed during the hearing by the Applicant and the testimony of two eyewitnesses. Furthermore, the Tribunal heard testimony from the investigator and the security officer who recorded the complainant’s report. The Tribunal did not find any evidence of ill-motivation on the part of the witnesses, and was satisfied that the facts related to the allegations...
