����AV

Having considered the case record, the Tribunal found that the Applicant did not contest the facts upon which the disciplinary measure was based. He did not contest either that his actions legally amounted to misconduct or that his due process rights were observed. Accordingly, the main issue in the present case was whether the disciplinary measure imposed was proportionate to the offense committed. However, as the proportionality of the sanction cannot be reviewed in isolation, the Tribunal deemed it appropriate to refer to the established facts and the misconduct as per the sanction letter.

The UNAT held that the UNDT erred in finding that ST/SGB/2003/13 imposes a requirement of “undue advantage” for sexual exploitation to occur.  The UNAT further found that the former staff member abused the position of vulnerability of V01 for sexual purposes (i.e., engaging in at least four acts of sexual intercourse), which constitutes sexual exploitation and abuse.  The UNAT emphasized that the UNDT itself acknowledged that V01, allegedly a minor, was vulnerable and less powerful than the former staff member, and that his actions had a sexual connotation.  Therefore, the UNAT held that the...

The UNAT noted that the staff member allowed an unauthorized female individual to board a United Nations vehicle assigned to him and to publicly commit acts of a sexual nature in the rear seat, bringing disrepute to the Organization and difficulties with the host country.

The UNAT found that the case was not one where the issues required the UNDT’s determination of the credibility of contradicting testimonies of parties or witnesses and the lack of a UNDT hearing had not affected its decision.  The UNDT appropriately considered the former staff member's admissions, as well as the video clip...

The Tribunal was unpersuaded by the Applicant’s claim that his participation in the Staff Day activities was “essentially private conduct not involving [United Nations] resources” or that this was “essentially a voluntary, social event”. The requirements for integrity, probity, honesty and truthfulness under the staff regulations and staff rules are not merely “generic obligations” but are specifically intended to apply “in all matters affecting [a staff member’s] work and status”. [...] Accordingly, the Tribunal found that the established facts in this case amount to misconduct on the part of...

The Tribunal found no procedural flaws in the procedure adopted to investigate and impose the disciplinary action taken.

The Tribunal determined that the application should be denied since the misconduct committed by the Applicant was very serious and there were no mitigating factors. The Applicant refused to supply relevant information even though she knew that it was known that she had a sister working in the Organization.

The disciplinary measure imposed was therefore proportionate and fairly imposed, with full opportunity to respond to questions asked and clarify answers, if necessary.

A lack of cooperation is not always a relevant circumstance in every case to be taken as aggravating factor. Sometimes, if the lack of cooperation is not serious, it may not be taken as an aggravating circumstance. However, the nature of the case may affect how lack of cooperation during an investigation is viewed. Being dishonest and misleading during the investigation may be considered serious and be taken as a ground of aggravation. Therefore, it cannot be concluded that a lack of cooperation can never be considered as an aggravating circumstance.

While the Appeals Tribunal has repeatedly...

The Respondent failed to secure the attendance of two victims at the remanded hearing. Four witnesses testified before the Tribunal, including only one victim. None of their testimonies corroborates the charges as laid. On the contrary, they are exculpatory in so far as all three witnesses testify that they did not see the Applicant doing anything improper at the event in question. Accordingly, there is no effective response to the concerns that formed the basis for the Appeals Tribunals’ decision to remand the case for a fresh hearing.

Neither the allegations memorandum nor the sanction...

The Tribunal assessed the evidence gathered by the investigators in relation to each incident and concluded that, in most instances, there was no direct or corroboratory evidence of harassment or sexual harassment, and the investigators based their conclusions solely on V01’s narrative. Since almost all the evidence in support of the finding of misconduct comes from V01’s testimony, in opposition to that of the Applicant, establishing V01’s credibility is an essential exercise for a proper adjudication of the case.

However, the investigation failed to adequately establish the reliability of...

The Tribunal, based on the evidence on the record, established that the invoice and the medical report that the Applicant submitted to Cigna for reimbursement were not authentic. Despite the foregoing, the Applicant certified to Cigna that the information he was submitting was “correct and true” and was therefore, acknowledging that he was aware of the contents of the medical claim and attesting to its authenticity.

The Tribunal further concluded that no evidence was offered of the effectiveness of the medical treatment. Excluding the fake invoice and the fake medical report, no other...

There was clear and convincing evidence that the Applicant engaged in entitlement fraud and received reimbursement for medical services that had not occurred. He falsely certified and submitted three Cigna claims; for which he was paid a total of USD17,171.26. He was not entitled to this reimbursement. As UNDP is self-insured, these funds represented a loss to UNDP.

The Applicant’s behaviour fell within what the UNDP Policy against Fraud and other Corrupt practices (approved in October 2018) defines as fraud. The established facts constituted misconduct.

As to proportionality of the...