UNAT Held or UNDT Pronouncements
The Appeals Tribunal considered that Mr. Egenhoff had failed to disclose his conflict of interest, he had failed to recuse himself from the procurement exercise, and he had repeatedly shared confidential information with AH. This conduct was intentional; it occurred over a prolonged period and was not in the interest of the United Nations. Moreover, Mr. Egenhoff was in a position of significant responsibility and as such, he was supposed to be a role model for the staff members he supervised. Considering other factors, Mr. Egenhoff had no prior disciplinary record, and there was no evidence of personal financial gain to himself or to AH. There was also no evidence of direct financial loss to the UN. The Appeals Tribunal found that taken as a whole, his misconduct warranted a significant sanction, but not necessarily the most severe level of discipline.
Turning to the second element of proportionality – the “parity principle” – the Appeals Tribunal reviewed the cases relied upon by the UNDT and the parties.
The Appeals Tribunal concluded that both the original sanction issued by the Secretary-General and the alternate discipline issued by the UNDT were disproportionate to the offence and thus unreasonable and that the appropriate and proportionate sanction was separation from service with compensation in lieu of notice, but with a termination indemnity.
The Appeals Tribunal therefore granted the appeal, in part, and modified the UNDT Judgment.
Decision Contested or Judgment/Order Appealed
The UNDT found clear and convincing evidence that Mr. Egenhoff, a former UNDP Resident Representative (RR), had been involved in a significant part of the procurement process with a non-governmental organization, for which his former romantic partner and still close friend AH was the focal point. The UNDT also found sufficient evidence that Mr. Egenhoff had shared confidential and internal UNDP information with AH on numerous occasions. The UNDT was satisfied that the established conduct legally amounted to misconduct.
The UNDT held that the sanction imposed on Mr. Egenhoff, which was separation from service with compensation in lieu of notice and without termination indemnity, was grossly excessive. In reaching its conclusion, the UNDT found that the Administration had failed to consider certain mitigating factors, and that the Administration had “erred in conflating the constitutive elements of the offences” with “an aggravating factor”. The UNDT also noted the past practice of the Organization which indicated that “for conflict of interest without person[al] gain, the common sanction is written censure, sometimes accompanied by a fine or demotion”.
The UNDT ordered rescission of the separation decision and directed the Secretary-General to impose instead the disciplinary measure of written censure; or, alternatively, compensation in lieu in the amount of two years’ net base salary.
The Secretary-General filed an appeal.
Legal Principle(s)
The United Nations internal justice system requires that the tribunals examine the lawfulness, reasonableness and procedural fairness of challenged decisions. In disciplinary matters, the reasonableness determination relies largely on an assessment of proportionality: is the sanction proportionate to the offence committed and consistent with the purposes of progressive discipline?
Staff Rule 10.3(b) provides that “[a]ny disciplinary measure imposed on a staff member shall be proportionate to the nature and gravity of his or her misconduct”. Proportionality also includes an assessment of “parity”: is the sanction within the range of sanctions imposed in similar cases?
First, with respect to the relationship between the sanction and the offence (taking into account the purposes of progressive discipline), the most important factors to be taken into account in assessing the proportionality of a sanction include the seriousness of the offence, the length of service, the disciplinary record of the employee, the attitude of the employee and his past conduct, and the context of the violation.
The second element of proportionality – the “parity principle” – requires the AppealsTribunal to examine the sanction imposed in comparable cases to ensure that similar cases are treated alike. A sanction which may appear “reasonable” in relation to a single case of misconduct may appear “unreasonable” when viewed against the broader context of how a sanction is imposed in fact in similar matters.
Outcome
Outcome Extra Text
The Secretary-General’s appeal is granted in part, and Judgment No. UNDT/2024/108 is hereby modified.
The appropriate and proportionate discipline in the present case is separation from service with compensation in lieu of notice, but with a termination indemnity. The indemnity shall be calculated pursuant to paragraph (c) of Annex III to the Staff Regulations based on Mr. Egenhoff’s contract of employment.