51ÁÔÆæ

The decision by the Chief of the Human Resources Services Section (HRSS) to discontinue the selection process without a proper determination that the recruitment procedures had not been followed precisely was an abuse of the Administration¡¯s discretionary authority. While the Applicant had only been ¡°recommended¡± for the post by the ASP and had not been ¡°selected¡±, the serious procedural irregularity that resulted from the Chief of HRSS¡¯ actions prevented his candidacy from proceeding to the central review body and therefore amounted to a violation of his rights. The decision was an abuse of...

In its findings, the Tribunal found that the evidence in support of the charges was credible and that the Applicant failed to prove that the decision to summarily dismiss him was arbitrary or motivated by prejudice or other extraneous factors, or was flawed by procedural irregularities or error of law. With regards to the Applicant¡¯s allegations of breach of due process, the Tribunal could not find any evidence that the rights of the Applicant had been violated. The Tribunal was also satisfied that the Respondent discharged his burden of proof and that he made proper use of his discretion.

Outcome: The applicant is not entitled to have the note removed simply because no disciplinary proceedings were undertaken in respect of the investigation report. However, the note in its present form is inaccurate and must be removed. Its replacement, if any, must be accurate and first shown to the applicant, who must be given a copy of the investigation report to enable him to place such comment on the file as he wishes, providing it is reasonably connected to the investigation.

In view of the evidence available and the Applicant¡¯s refusal to disclose evidence that could exonerate her and that she alone could have produced, the Tribunal considered that the facts on which the disciplinary measure was based had been established. Section 20 of the Convention of the privileges and immunities of the United Nations provides that privileges such as VAT exemption are granted to staff members in the interests of the United Nations and not for the personal benefit of the individuals themselves. Section 21 further provides that the United Nations shall cooperate at all times...

Placing the Applicant on SLWFP. The Tribunal agrees with and adopts the Kamunyi reasoning that former staff rule 105.2 did not permit placing a staff member on SLWFP where an investigation was being made into possible wrong-doing by that staff member. The formal nature of the OIOS/PTF investigation. A preliminary investigation under ST/AI/371, sec. 2, is differentiated from a formal investigation under ST/AI/371, sec. 6, as occupying different places within the overall structure of ST/AI/371. For an investigation to be regarded as merely preliminary in nature, some ¡°reason to believe¡± must...

Outcome: The Tribunal found that the Applicant¡¯s due process rights were observed by the Organization in its handling of the complaint and rejected the application in its entirety. The Tribunal found that the actions of the Organization in handling the complaint, both individually and in aggregate, met the requirements of due process.

The Applicant¡¯s alleged abuse of Buddy qualified as such conduct. Not returning the Applicant to the Canine Unit. It was proper not to return the Applicant to his former job after the disciplinary case against him had been dismissed. Not returning Buddy. Since Buddy was surrendered to the custody of the New York State Police, the United Nations would appear to have transferred back the property rights over Buddy to the New York State Police. Regardless of the outcome of the disciplinary case against the Applicant, it would therefore seem that the Respondent is not able to return Buddy to the...

Placing the Applicant on SLWFP. This Tribunal agrees with and adopts the Kamunyi reasoning that former staff rule 105.2 did not permit placing a staff member on SLWFP where an investigation was being made into possible wrong-doing by that staff member. The formal nature of the OIOS/PTF investigation. For an investigation to be regarded as merely preliminary in nature, some ¡°reason to believe¡± must exist that a staff member has engaged in unsatisfactory conduct, but the investigation must not have reached the stage where the reports of misconduct are ¡°well founded¡± and where a decision already...

The Tribunal held that the presence of bad faith in some of the Respondent¡¯s actions concerning the Applicant stood out in bold relief. There was no doubt that the bad blood between the Applicant and her immediate supervisor created a ripple effect and alienated her from the Chief of ICTS. The testimony on why and how the recruitment process for VA 421846 had to be overhauled clearly reflected a blatant manipulation of the selection process set out in ST/AI/2006/3; a subversion and clear breach of United Nations Staff Rules. The Applicant did not make out a case with regard to her allegations...

The Tribunal found that the Applicant¡¯s rights to defence had been breached during the disciplinary procedure because the investigation report and all its attachments had not been shared with him. It concluded however that such a procedural flaw did not affect the established facts, since the Applicant had admitted to them, and did not warrant the rescission of the contested decision, since the established facts amounted to misconduct. The Tribunal nevertheless rescinded the summary dismissal on the ground that it was disproportionate to the established facts. It ordered: (i) the reinstatement...