In this case the initial inquiry was inadequate and affected by bias. Outcome: Applicant awarded USD20,000 for breach of contractual right. Parties directed to make submissions as to whether ST/AI/371 is still operative or has been implicitly appealed by ST/SGB/2009/7. Further hearing to decide as to whether USG’s conduct should be referred to the SG for possible action to enforce accountability pursuant to art 10.8 of the UNDT Statute.
The Administration, having reviewed the OIOS report, had reason to believe that the Applicant may have engaged in unsatisfactory conduct for which disciplinary measures may be imposed. The discretion was exercised judiciously by the responsible officers after review of the OIOS Investigation Report. The findings of the ASG/OHRM were those of an objective observer who had scrutinized the entire dossier and made conclusions on the basis of the evidence before him. There was no procedural irregularity on the part of the Organization as there was full compliance with ST/AI/371. Where an Applicant...
Reason to believe: that a staff member has engaged in unsatisfactory conduct is buttressed by a fact-finding, which in turn creates the requirement to investigate.Fact-Finding: fact-finding process is the collection and analysis of information to determine the veracity of an allegation against a staff member. It is a prerequisite for an investigation and cannot replace an investigation. As such cannot be used as the basis for imposing a disciplinary measure. Investigation: A disciplinary process can only be initiated based on proper official investigation being conducted under ST/AI/371.
The Applicant is “not contest[ing] the proportionality of the sanction(s) imposed”. Consequently, the Tribunal need only consider if not reporting another staff member’s violation ST/SGB/2004/15 was correctly considered by the Respondent as being the Applicant’s misconduct, whether his due process rights were respected and whether all the mitigating circumstances were taken into account. There is no evidence before the Tribunal that the Applicant requested, and was denied, either access to counsel or further opportunities to defend himself during the investigation conducted by OIOS. With...
The Applicant is “not contest[ing] the proportionality of the sanction(s) imposed”. Consequently, the Tribunal need only consider if not reporting another staff member’s violation ST/SGB/2004/15 was correctly considered by the Respondent as being the Applicant’s misconduct, whether his due process rights were respected and whether all the mitigating circumstances were taken into account. There is no evidence before the Tribunal that the Applicant requested, and was denied, either access to counsel or further opportunities to defend himself during the investigation conducted by OIOS. With...
Receivability: The Tribunal concluded that MEU had taken a rather restrictive view of the nature of the Applicant’s request when it deemed it to be irreceivable. While it cannot be disputed that the Applicant requested closure of the investigation against him, and the investigation was closed, he also listed a number of instances that, in his view amounted to “violations of procedural fairness”. The procedural matters did not exist in a vacuum but were connected to the investigation. The closure of the investigation notwithstanding, the Tribunal found that there were still live issues that...
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...
Formal requirements: It is justified to request a complainant to conform to the requirements of format and content of secs. 5.11 and 5.13 of ST/SGB/2008/5. However, as a matter of fairness, the same degree of exigency must be required from the different complainants. Purpose and material scope of ST/SGB/2008/5: ST/SGB/2008/5 was promulgated to address very specific kinds of conduct, defined in its sec. 1. Re-characterizing allegations of a different nature and having them investigated under the bulletin is a misuse of the procedure. Investigating a complaint and its counter-complaint together...
The established facts considered in their entirety amount to misconduct in the form of sexual harassment. Sexual harassment can manifest itself in different forms, its determination is fact specific, and its occurrence is not limited to work places during work hours. The Applicant’s conduct amounts to sexual harassment in violation of staff rule 1.2(f). A plain reading of the Applicant’s Facebook messages shows their sexual nature. Moreover, in the Tribunal’s view, the Applicant was put on notice that his sexual advances were unwelcome by Ms. X’s text message in July 2012 requesting that he...
The Respondent had no clear and convincing evidence on which to decide on dismissal of the Applicant for violating Ivorian law in 2007 by accepting payment to produce false passports and committing fraud. On a literal interpretation of staff regulation 1.2(b), the Applicant engaged in misconduct. His negative response to the PHP question about prior indictments, fines or imprisonment amounted to an intentional withholding of required information pertinent to the Organization’s background integrity checks. The answer was neither truthful nor honest. The Applicant certified in his PHP that he...
