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The UNDT found that the decision that there was “reason to believe” that the Applicants may have committed misconduct was manifestly unreasonable, arrived at in breach of due process, and was thus unlawful. The UNDT found that the Applicants’ rights were not respected during the subsequent preliminary investigation. The UNDT found that the decision to conduct an investigation against the Applicants and the manner in which it was carried out was tainted by procedural irregularity and manifest unfairness. The UNDT found that the Applicants had engaged in protected activity, namely, reporting of...

The Tribunal noted that the delegation of authority in disciplinary matters from the SG to the USG for Management in July 2009 had not been published and as such lacked a substantial requirement for taking legal effect. Moreover, the Tribunal found that the USG for Management could not further delegate this power to another person, since any kind of “sub-delegation” should have been provided for in the initial delegation of authority by the SG to the USG for Management, which was not the case. The decision to dismiss the Applicant was taken by the OIC, USG for Management. The Tribunal found...

Testimony of anonymous witnesses: The Tribunal held that the testimony of witnesses whom the Applicant has not had the opportunity to confront in proceedings is not inadmissible per se. However, a decision adverse to a staff member in a disciplinary case may not be based solely on this. There must be some independent evidence that can confirm the anonymous testimony, especially where the staff member has not had a chance to confront the witnesses and therefore challenge any incriminating evidence they have given against the staff member. The Tribunal also held that the requirements of due...

The Applicant’s rights were respected in compliance with ST/AI/371. The Applicant failed to establish any irregularities in the procedure followed to impose the disciplinary measure on him. It was clear from the investigation that there were several irregularities in the supporting documents submitted by the Applicant. These irregularities were sufficiently disturbing to strongly suggest that the said invoices were falsified. The facts on the basis of which the Applicant was sanctioned were established. The Applicant’s actions constituted professional misconduct within the meaning of the...

Placement on SLWFP: The Tribunal held that there was ample evidence that the underlying rationale behind the placement of the Applicant on SLWFP related to misconduct and as such, his suspension cannot be justified under former staff rule 105.2(a)(i) since the Respondent did not have the requisite authority to place him on SLWFP in the context of an investigation. The Tribunal concluded that the Respondent’s placement of the Applicant on SLWFP was in actuality a suspension from service pursuant to former staff rule 110.2 and section 6 of ST/AI/371. Due Process: The Tribunal held that the scope...

Disciplinary investigations: are not criminal in nature and the evidential standards that apply to criminal investigations do not apply. The decision maker cannot exclude the evidence obtained by an unlawful interview from consideration but the weight of the evidence obtained in unfair or unlawful circumstances should be treated with the utmost caution.

Legal Obligations/Applicable rules: Rules affecting jurisdiction and remedies are not procedural but substantive in nature. A person cannot be entitled to remedies or be subject to penalties that come into force after the event in question. Protected activity: The criteria for determining whether a person has properly reported misconduct or engaged in a protected activity are not mere matters of procedure. A report of misconduct is the protected activity which is the very foundation of a claim for protection without which a claim cannot be considered. Retroactive application: As a matter of...

Effect of the breach of due process rights: The Tribunal found that while the Applicant had been denied some of his due process rights at the investigation stage, this breach was cured by the subsequent court proceedings. Further, the Tribunal held that the sanction of summary dismissal was fully justified in view of: (i) the status of the Applicant in the procurement process of ECA; (ii) the fact that he contracted with United Nations vendors without disclosing that fact in clear terms; and (iii) the fact that he was engaged to some extent in the activities of two other companies without...

Due Process: It is UNAT jurisprudence that based on the staff rules there is no mandatory right to counsel for staff members who are undergoing interviews during the preliminary investigation of allegations for misconduct. Ultra vires: The author of the decision in this case was not the person who signed the 15 August 2011 dismissal letter but, as referred to in the letter, was the Under-Secretary-General for Management who took the decision on behalf of the Secretary-General. Pursuant to ST/AI 371/Amend.1, the decision-maker had the proper authority to do so and the decision was not ultra...