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...

As the parties concur that the correct procedure for the ABCC was not applied and the cases should be remanded to the ABCC for institution or correction of the required procedure, the Tribunal will, by consent, so order. However, since art. 10.4 of the Statute explicitly states that such remand shall be done ¡°prior to a determination of the merits of the case¡±, the Tribunal is not in a position to pronounce on the substance of the cases (at least Case No. UNDT/NY/2018/011, concerning the ABCC¡¯s initial rejection of the compensation claim and not the subsequent rejection by its Secretary), and...

As the matter was settled by mutual agreement, the case is closed.

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...

Art. 8.1(i) of the UNDT Statute provides that in cases where a management evaluation of the contested decision is required, as in this case, an application shall be receivable if it is filed within the statutory time-limits. A staff member who has received an adverse decision about a claim cannot purport to unilaterally withdraw it and resubmit it with allegedly new evidence to attempt to have a new decision. In this case, there is not even new evidence. There would never be finality or certainty in respect of any decision if this were to be permitted. Such conduct, aimed at resetting the time...

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...

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.

Article 13 of the applicable Appendix D requires the ABCC to make its determination ¡°on the basis of reports obtained from a qualified medical practitioner or practitioners¡±. The scope of the ABCC¡¯s discretion in exercising its powers is also not unlimited under the jurisprudence of the Appeals Tribunal (see Sanwidi as quoted above).; As convincingly explained by the Applicant¡¯s psychologist, PTSD differs from many other types of diseases and illnesses because the symptoms of PTSD do not manifest themselves at the same time as the event(s) that caused it¡ªPTSD is per definition a post traumatic...

The management evaluation rescinds the 25 September 2019 decision not to investigate the Applicant¡¯s complaint of abuse of authority. Therefore, in application of Crotty, the Applicant¡¯s request for an order directing UNICEF 51ÁÔÆæ its obligations with respect to the complaint is not receivable. The Tribunal notes that as the 25 September 2019 decision was rescinded, further actions or inactions taken following the 7 November 2019 decision constitute fresh administrative decisions, actual or implied. Therefore, in application of art. 8.1(c) of the Tribunal¡¯s Statute, the Applicant must...