����AV

Compensation for stress and anxiety The Applicant produced medical evidence of stress and anxiety. The Tribunal finds that this aspect of the claim is made out. Also, the actions of Mr. Stephen Lieberman, Chief Administrative Officer, described in the Tribunal’s Judgment on liability, were high-handed and grossly disproportionate and the attempt at misleading both the JAB and JDC panels, as well as Counsel for the Respondent and the Tribunal in the present proceedings, constitute aggravating factors which the Tribunal finds heightened the distress experienced by the Applicant. In arriving at a...

Placing the Applicant on SLWFP. The Tribunal agrees with and adopts the Kamunyi reasoning that former staff rule 105.2 did not permit placing a staff member on SLWFP where an investigation was being made into possible wrong-doing by that staff member. The formal nature of the OIOS/PTF investigation. A preliminary investigation under ST/AI/371, sec. 2, is differentiated from a formal investigation under ST/AI/371, sec. 6, as occupying different places within the overall structure of ST/AI/371. For an investigation to be regarded as merely preliminary in nature, some “reason to believe” must...

The Tribunal finds that the application is not receivable because the contested decision is not a disciplinary measure within the meaning of staff rule 11.2(b) and accordingly the time limits applicable under art. 8.1(d)(i) of the Tribunal’s Statute should have been complied with. It clearly follows from staff rule 11.2(b) that the exemption from the requirement to request the management evaluation of a disciplinary measure only applies to disciplinary measures imposed following the completion of a disciplinary process.

The Tribunal found that the Applicant’s rights to defence had been breached during the disciplinary procedure because the investigation report and all its attachments had not been shared with him. It concluded however that such a procedural flaw did not affect the established facts, since the Applicant had admitted to them, and did not warrant the rescission of the contested decision, since the established facts amounted to misconduct. The Tribunal nevertheless rescinded the summary dismissal on the ground that it was disproportionate to the established facts. It ordered: (i) the reinstatement...

The Initial Reprimand. The provisions of ST/AI/292 and the doctrine of audi alteram partem were not observed in that the Applicant was not afforded an opportunity to see and to comment on the reprimand before it was issued for which reason he had no opportunity to comment on it in advance. The Reinstated Reprimand. The Tribunal identified the following difficulties with the Reinstated Reprimand: (1) as with the Initial Reprimand, the Applicant was not permitted to see and to comment on the Reinstated Reprimand in accordance with ST/AI/292; (2) the rules and regulations of the Organization...

The Applicant made good faith efforts to comply with his financial disclosure obligations for 2005. The Secretary-General failed to take into account the various mitigating factors in favour of the Applicant when determining the sanction against him. The disciplinary sanction imposed on the Applicant was far more excessive than was necessary for obtaining the desired purposes of the financial disclosure program. The appropriate disciplinary measure in the present case should be a reprimand.

The Tribunal finds that the facts on which the disciplinary measures are based were established. Judicial review of disciplinary sanctions (1): As the Applicant challenges the disciplinary measures on the sole ground that he did not commit the purported actions, there are no grounds for the Tribunal, once it has found that the facts are established, to consider whether these facts legally amount to misconduct and whether the sanctions imposed on the Applicant were proportionate. Judicial review of disciplinary sanctions (2): The circumstance that an investigation into misconduct might have...

The Tribunal observed that the Applicant conceded, in his closing submission, that the distribution and storage of pornographic material using the UNDP equipment constituted misconduct. Therefore, the Tribunal considered the characterization of this charge settled and did not go on to examine it. On due process, the Tribunal found that the investigation was hasty and afforded the; Applicant little opportunity to prepare for his case. On proportionality, the Tribunal held that the lack of due process shown on the part of the Respondent while investigating the Applicant must necessarily count to...

The UNDT found that the Respondent had failed to fully comply with his obligations under ST/SGB/2008/5 with respect to the Applicant’s complaints and that the Respondent had violated the Applicant’s rights by not promptly providing her with a summary of findings and conclusions and by not investigating allegations of misconduct that impacted on her. Action to be taken under sec 5.14 of ST/SGB/2008/5: Depending on the circumstances of the case, section 5.14 may have two elements that must be satisfied by the Organization. The first component of section 5.14 is the review and assessment of the...

The UNDT found that the Applicant had been grossly negligent in that a duty-conscious and vigilant Logistics Assistant in the Applicant’s position ought to have reasonably foreseen that the documents in possession of Mr Weah were sufficient to enable him to misappropriate the containers. The sanction was fair and proportionate. The Application therefore failed. Negligence test: Three elements which must be established to prove gross negligence; namely, (1) a failure in the form of an act or omission to exercise the requisite standard of care; (2) the standard of care required is that which a...