51ÁÔÆæ

The more serious an allegation against a staff member and attendant sanction, the higher the degree of proof required. Establishing criminal liability in investigations and judicial proceedings even in the context of a civil matter such as this must necessarily require that a standard higher than the ordinary one of a balance of probabilities must be attained. The OIOS Investigations Manual requires that investigators approach matters with an ¡°open mind¡± and emphasises that their task is to ¡°establish facts¡± and draw ¡°reasonable conclusions¡± from those facts. It is a ¡°dispassionate...

Pursuant to section 3 of ST/AI/371, in determining if the preliminary investigation appears to indicate that the report of misconduct is well founded, the head of office or responsible officer is vested with a wide discretion. That discretion is to be exercised judiciously in the light of what the investigation has revealed. The discretion cannot and should not be used capriciously. It is incumbent on the person vested with that discretion to scrutinise the evidence carefully before deciding whether any act of misconduct as defined has been committed. A judicious exercise ofthe discretion...

The Applicant¡¯s challenge of his non-renewal is not receivable as no administrative review of this decision was sought. The Respondent failed to reasonably exercise the discretion to withhold or modify the Investigation Report (and Executive Summary). The parties will be directed to make submissions on appropriate relief.

UNDT reiterated that, as it had held in Adorna UNDT/2009/012, the Applicant¡¯s claims concerning the propriety of the letter of reprimand were not receivable and this case was limited to the following contested decisions: (i) the refusal to allow the Applicant access to the investigation report; (ii) the refusal to pay the Applicant¡¯s legal expenses; and (iii) the refusal to issue internal and public announcements acknowledging his exoneration. UNDT found that the Applicant¡¯s request for the investigation report was reasonable and that the obligations of good faith and fair dealing required...

The Tribunal finds that the decision to summarily dismiss the applicant is not tainted by any irregularity, that the facts are established, that they amount to misconduct and that the sanction of summary dismissal is proportionate to the seriousness of the misconduct. UNDT jurisdiction: The Tribunal has no power to compel a person external to the Organization to appear before it as a witness. Standard of review of disciplinary matters: In reviewing disciplinary matters, the Tribunal must examine whether the procedure followed was regular, whether the facts in question are established, whether...

The applicants appealed the imposition of disciplinary measures on the grounds that the evidence against them was unfairly obtained as the applicants were not informed that they were under investigation or suspected of misconduct and that this breach of due process vitiated the imposition of disciplinary measures. A breach of the right to due process is both procedurally and substantively unfair. The Tribunal cannot uphold the findings and conclusions of a disciplinary process that was fundamentally flawed where the panel failed to uphold the applicants¡¯ rights to due process. Outcome: The...

The various letters of appointment that the applicant had received in the past contained a provision of non-expectancy of renewal. The applicant¡¯s main contention was that the non-renewal of his fixed-term appointment was an act of retaliation because he reported some allegations of financial fraud. The respondent¡¯s primary submission is that the non-renewal of the applicant¡¯s fixed-term appointment was based on unsatisfactory performance as evidenced in some PAS reports, which had later been upheld by a rebuttal panel. UNDT found that the decision not to renew his fixed-term appointment was...

UNDT found that the applicant had standing in both cases and that the appeals were not time-barred. UNDT found that the Organisation did not violate the applicant¡¯s rights when it decided that the provisions of ST/SGB/2005/21 were not directly applicable to him. UNDT found that the applicant¡¯s complaint of retaliation was adequately and objectively examined by the investigation panel and by the Director Ethics Office, who agreed that no retaliation had taken place. Thus, the applicant received appropriate recourse. However, UNDT found that the applicant¡¯s rights were violated when the...

The respondent submitted documentary evidence showing that the applicant¡¯s post had been created, and the applicant recruited, specifically for the purpose of prosecuting the above-mentioned top Serbian leader. Accordingly, the Tribunal concluded that the decision to abolish the applicant¡¯s post and to terminate his fixed-term appointment had been taken in view of the necessities of service and constituted a proper exercise of the respondent¡¯s discretionary authority. Since it was established that the necessities of service justified the termination of the applicant¡¯s appointment, it was not...

¡°[...]if the respondent fails to follow proper procedures, and even if the decision is subsequently withdrawn, the applicant may be entitled to compensation, for the violation of his due process rights at the time the decision in question was taken. Therefore, the question of compensation must be dealt with separately from the fact that the contested decision was withdrawn.¡± ¡°The Administration¡¯s failure to pursue one of the options under Section 9 of ST/AI/371, to put the case on hold and to keep the applicant, who had been charged with misconduct, in a limbo and to issue the Note for File...