51ÁÔÆæ

1)Disciplinary sanction The Applicant failed to disclose that her husband had been employed by UNICEF vendors during the Applicant¡¯s employment with UNICEF and these material facts on which the disciplinary measure was based have been sufficiently established and were not in dispute between the parties. The legal framework is sufficiently clear in determining that a conflict of interest may exist even where there is only the possibility that the staff member or the private business with which he or she may have association could benefit from such association. The Administration properly...

Preliminary matters Loss of Applicant¡¯s professional emails (potential evidence): One of the Applicant¡¯s main arguments was that allegedly exculpatory evidence in her case (emails from and to the Applicant) had been lost which affected her due process rights, thus rendering the investigation unfair and improper. The Tribunal found that the alleged email evidence was not destroyed wilfully. Rather, it was destroyed as a consequence of the negligence of a number of people. The Tribunal noted that the investigators have a very high duty to locate and preserve evidence. The investigators are also...

Merits: The evaluation criteria in the comparative review matrix on record, against which the suitability of job candidates was appraised, did not correspond to the mandatory and desirable/advantageous qualifications, and in light of these anomalies alone, the Respondent failed to minimally demonstrate that the Applicant received full and fair consideration. Considering that the documents on record do not include any specific analysis with supporting documentation as to how the selected male candidate¡¯s qualifications were clearly superior vis-¨¤-vis the Applicant, the Applicant has proved...

Even if the investigation had been completed and it has been decided not to inform the Applicant of its outcome, such decision would still need to be submitted for management evaluation. No matter what the situation is¡ªif a decision has been made on providing the Applicant information on the OIOS investigation or not¡ªthe application is not receivable.

The Tribunal found the application receivable because the Applicant filed a timely request for management evaluation. Additionally, the Tribunal was satisfied with the Applicant¡¯s documentation regarding technical issues with the e-Filing portal that he filed to support his claim of exceptional circumstances for filing his application late. Lastly, to the extent that the resignation of the Applicant was instigated by the Respondent or his agents, the Tribunal found that this was an administrative decision capable of being challenged. The Tribunal found that the Applicant had misrepresented his...

The Tribunal found that a witness¡¯ evidence on all matters totally lacked credibility and due to its conflicting nature was at best unreliable. The different versions of the facts were entirely contradictory. In such a situation the Tribunal has no course other than to totally exclude all evidence from the witness as lacking any probative value. The testimony presented and heard by the Tribunal does not prove, at the required standard, that the charge of collusion in fraud or gross negligence against the Applicant was made out. The Respondent had the burden of proof, which he did not discharge...

Considering that the sanctioning decision relied heavily on the finding that the Applicant had had five times over the limit established by the SOP from 2012, the interpretation of the reading of the breathalyser remained an issue. In this respect, the Tribunal was not satisfied that the evidence was clear and convincing. The Respondent rejected an explanation offered by the Military Police officer in charge of administering blood tests that the breathalyzer had recalculated the contents of alcohol found in the exhaled breath (BrAC) to relative alcohol contents in blood (BAC) and displayed the...

UNDT found that on the date of the issuance of the disciplinary measure, as well as on the date when it was received by the Applicant, she remained subject to the Staff Regulations and Rules, which allow for the imposition of disciplinary measures. UNDT held that the facts of the case demonstrate that the Applicant¡¯s actions were undertaken in a conflict of interest in violation of staff regulation 1.2(m). The actions also demonstrate lack of integrity in violation of staff regulation 1.2(b), which requires staff members to ¡°[¡­] uphold the highest standards of efficiency, competence and...

In the matter of non-selection, it is evident that the Applicant was required to take a test but did not. The Applicant did not explain why she failed to take the test in any terms which show that the Administration must take responsibility for this failure. UNDT held that the Applicant must take responsibility for this failure and therefore can blame no-one other than herself for the non-selection. UNDT dismissed this aspect of the Application. UNDT held that the finding that there was insufficient evidence to pursue the matter of sexual harassment tantamounts to abuse abuse of authority on...

UNDT was satisfied, based on the evidence, that the Applicant was prepared to use his power and influence to make life in the United Nations difficult for the Complainant if she pursued her complaint against him. UNDT held that this evidence satisfied the clear and convincing requirement. The evidence also showed that, during the investigation, the Applicant was afforded the due process rights he was entitled to. UNDT held that the disciplinary action of summary dismissal in this matter was justified and proportionate. UNDT dismissed the application.