¹ú²úAV

The Respondent rested his case on the evidence of a witness on whom anonymity was conferred during the investigation and who was not called at the hearing. From the statements made by the witness during the investigation the Tribunal found that his/her testimony was fraught with irregularities and inconsistencies and could not be acted upon. The Tribunal also found that failure to call the witness for cross examination was a breach of the due process requirement. The Tribunal also held that when anonymity is conferred on a witness during the investigation, the Tribunal is not bound by this and...

The respondent had sufficient grounds to believe that the applicant had, by altering the form, breached a fundamental requirement safeguarding the integrity of the refugee resettlement programme of UNHCR. This amounted to serious misconduct and was in breach of staff regulation 1.2. However, the failure to have due regard to independent evidence of an oppressive work environment and by not carrying out a proper investigation, as unanimously recommended in the JDC report, the Secretary-General effectively deprived himself of material which would have placed the misconduct in its proper...

The panel report did not constitute a breach of the applicant’s contractual rights and therefore no compensation is warranted. Such a panel is not a court and while it must be fair, it must be allowed to do its reasonable best to ascertain the facts as it thinks is right. Even though the audit was seriously flawed in significant respects, the decision as to its content is not subject to appeal to the Tribunal. Constructive dismissal occurs when the employer engages in a scheme of action which, in effect makes it so difficult for the employee to continue with his or her work, that the latter...

In view of the evidence available and the Applicant’s refusal to disclose evidence that could exonerate her and that she alone could have produced, the Tribunal considered that the facts on which the disciplinary measure was based had been established. Section 20 of the Convention of the privileges and immunities of the United Nations provides that privileges such as VAT exemption are granted to staff members in the interests of the United Nations and not for the personal benefit of the individuals themselves. Section 21 further provides that the United Nations shall cooperate at all times...

There was sufficient material before the Secretary-General, after a fair and impartial investigation, to reach a finding of serious misconduct. The sanction of summary dismissal was fair and proportionate to the seriousness of the offences. The applications are dismissed.

The Tribunal did not find any evidence of sexual exploitation and abuse as defined by the SGB. The Tribunal considered the definition of pornography and on viewing the images concluded that they were obscene, hardcore pornography. In view of the Applicant’s admissions and the quantity of materials on his official computer, the misconduct charge in that respect was well founded. The Applicant’s submission that the evidence was fruit of the poison tree and therefore inadmissible was rejected on the basis that the illegally obtained evidence (a CD) merely triggered the investigation but did not...

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 Tribunal finds no flaws in the procedure leading to the dismissal of the Applicant. It further finds, based on its assessment of the intern’s credibility and on the evidence available, that the facts have been established. It also concludes that they qualify as misconduct, even though the Respondent erroneously relied on ST/SGB/2008/5; the latter was indeed issued on 11 February 2008 and was therefore not applicable at the time of the misconduct. Finally, the Tribunal, recalling the Secretary-General’s discretion in disciplinary matters and considering the circumstances of the case, finds...

The Tribunal noted that in reviewing disciplinary cases, its role is to examine: (i) whether the facts on which the disciplinary measure was based have been established; (ii) whether the established facts legally amount to misconduct; (iii) the proportionality of the disciplinary measure; and (iv) whether there was a substantive or procedural irregularity. Further, the Tribunal noted that in reviewing disciplinary cases, it must scrutinize the facts of the investigation, the nature of the charges, the response of the staff member, oral testimony if available and draw its own conclusions. The...

Judicial review in disciplinary matters: In reviewing disciplinary matters, where the facts are established and undisputed, the Tribunal is to examine whether the facts in question constitute misconduct and whether the sanction imposed is proportionate to the misconduct. In this regard, the Tribunal may not intervene in the exercise of the Secretary-General’s discretionary authority, except in cases of obvious absurdity or flagrant arbitrariness.