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The Tribunal found that the evidence adduced by the respondent did not sufficiently support the charge that the applicant had not paid for three tickets issued to him by MCM and that, accordingly, the applicant should be given the benefit of the doubt in respect of this charge. About the applicant’s unauthorized absences from the mission area, the Tribunal held that, taking into account the specific circumstances of the case, a dismissal was disproportionate to the offence and that a written censure would be an appropriate measure. The Tribunal found that the applicant’s due process rights had...

Section 5.5 of ST/SGB/2002/6 does not give the right to request the removal of a candidate’s name from the list of recommended candidates as an alternative to a request for clarification. Therefore, the selection process was procedurally flawed which gives a right to compensation. It is not the Tribunal’s competence to substitute the Administration’s decision to select between suitable candidates.

The decision to remove the Applicant from the position of Rule of Law Project Manager: The UN Charter expects all staff members to conduct themselves in accordance with the highest standards of efficiency, competence and integrity. Further, there is implied into every contract of employment a term of mutual trust and confidence between employer and employee, which means that both parties must act responsibly and in good faith. Where the employer acts unilaterally in removing an important part of the employee’s functions, the employer would have repudiated the contract of employment. The...

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...

The decision by the Chief of the Human Resources Services Section (HRSS) to discontinue the selection process without a proper determination that the recruitment procedures had not been followed precisely was an abuse of the Administration’s discretionary authority. While the Applicant had only been “recommended” for the post by the ASP and had not been “selected”, the serious procedural irregularity that resulted from the Chief of HRSS’ actions prevented his candidacy from proceeding to the central review body and therefore amounted to a violation of his rights. The decision was an abuse of...

In its findings, the Tribunal found that the evidence in support of the charges was credible and that the Applicant failed to prove that the decision to summarily dismiss him was arbitrary or motivated by prejudice or other extraneous factors, or was flawed by procedural irregularities or error of law. With regards to the Applicant’s allegations of breach of due process, the Tribunal could not find any evidence that the rights of the Applicant had been violated. The Tribunal was also satisfied that the Respondent discharged his burden of proof and that he made proper use of his discretion.

Outcome: The applicant is not entitled to have the note removed simply because no disciplinary proceedings were undertaken in respect of the investigation report. However, the note in its present form is inaccurate and must be removed. Its replacement, if any, must be accurate and first shown to the applicant, who must be given a copy of the investigation report to enable him to place such comment on the file as he wishes, providing it is reasonably connected to the investigation.

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...

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...

Outcome: The Tribunal found that the Applicant’s due process rights were observed by the Organization in its handling of the complaint and rejected the application in its entirety. The Tribunal found that the actions of the Organization in handling the complaint, both individually and in aggregate, met the requirements of due process.