����AV

UNAT considered an appeal by the Secretary-General. UNAT held that UNDT’s conclusion, that the assault committed was not misconduct and that the Organisation’s jurisdictional competence did not extend to the physical assault of a non-UN staff member even where the assault is perpetrated by a staff member, was based on reasoning which was unsupported by law or the facts. UNAT held that, not only the issue had not been raised in the case presented to UNDT, but such a proposition had also no foundation in the staff regulations, staff rules, administrative instructions, or jurisprudence. UNAT held that there is nothing in A/RES/64/110 that could possibly prevent the Organisation from taking disciplinary measures against a staff member who fails to comply with his or her obligations under the UN Charter, the Staff Regulations and Staff Rules or other relevant administrative issuances, or to observe the standards of conduct expected of an international civil servant. UNAT held that the assault against Ms Oduke was properly within the jurisdictional competence of the Organisation and that it would draw its own conclusions as to proportionality of the disciplinary measure. UNAT held that UNDT erred in considering that Mr Toukolon’s drunkenness and the fact that Ms Oduke, a non-UN staff member, was at the Base outside curfew hours, constituted mitigating factors. UNAT held that the determination that the said conduct was serious misconduct was a reasonable exercise of the Secretary-General’s discretion. UNAT held that it was a reasonable exercise of his discretion to determine that assault, together with the other charges, rendered the staff member unfit for further service with the Organisation, and was satisfied that separation from service with compensation in lieu of notice and with termination indemnity – which is not, after all, the most severe form of dismissal – was neither unfair nor disproportionate to the seriousness of the offences. UNAT upheld that appeal and vacated the UNDT judgment.