2021-UNAT-1156, Ahmad Payenda
The staff member appealed to UNAT arguing inter alia that there was no clear and convincing evidence in the record showing that he was aware that he was the subject of an investigation at the time he applied to the UNICEF job. UNAT determined that the letter from the IOM Legal Counsel (an authorized representative of an agency within the United Nations System) enjoyed the status of an “official act” and as such carried with it “the presumption of regularity”. The Tribunal found that once this evidence had been adduced, it was incumbent upon the staff member to rebut it, which he failed to do. Thus, considering the letter from the Legal Counsel and the Notice of Allegations, UNAT found that the facts in support of the allegations were established by clear and convincing evidence. Citing Rajan and Staff Regulation 1.2(b), the Tribunal agreed with the UNDT that a false answer in an application form is prima facie proof of dishonesty, which amounts to misconduct under the applicable law of the Organization. Additionally, UNAT noted that regardless of the merits of the previous IOM investigation, what mattered in the situation at hand was the failure of the staff member to disclose the prior investigation on his job application. The Tribunal also determined that the sanction of dismissal was proportionate to the offense and that the due process rights of the staff member were respected. In conclusion, UNAT also explained that the disciplinary measure of dismissal was appropriate because the job application and resulting selection exercise of the staff member was tarnished ab ovo, i.e. the misrepresentation of the staff member impacted the whole selection process and could not be remediated by some other didactic measure, other than dismissal.
A staff member who previously worked at IOM applied for the position of Finance Assistant at UNICEF. On his job application to UNICEF, he marked “no” to the question whether he had ever been the subject of an investigation. After he started at UNICEF, the Administration found out that while he was at IOM, he was investigated for fraud. UNICEF started its own investigation based on the allegation that the staff member had allegedly failed to provide truthful information on his job application. The IOM Legal Counsel confirmed in a letter to UNICEF that the staff member was indeed aware that he was the subject of an investigation and that he had received a Notice of Allegations to that effect. The Legal Counsel also noted that the staff member was interviewed by the OIG. Upon the conclusion of the investigation and after having invited the staff member to respond to the allegations, the Administration decided to dismiss the staff member from service, finding that there was clear and convincing evidence that he had misstated the truth on his job application. The staff member challenged the dismissal decision, but the UNDT upheld the action, finding that at the time of his application to UNICEF, the staff member was indeed aware that he was the subject of an investigation. The tribunal found that: (i) the facts in support of the allegations were established by clear and convincing evidence; (ii) the actions of the staff member amounted to misconduct; (iii) the sanction of dismissal was proportionate to the offense, and (iv) there were no procedural flaws in the disciplinary proceedings.
A letter or document, detailing the status of a staff member, coming from an authorized representative of a United Nations agency or affiliate enjoys the status of an “official act” and as such carries with it “the presumption of regularity”. Once such document had been adduced, the burden shifts on the staff member to rebut this evidence. Such letter or document, together with other evidence, can constitute clear and convincing evidence. A false answer in an application form is prima facie proof of dishonesty, which constitutes misconduct under the applicable law of the Organization. Depending on its severity, a misrepresentation on a job application can tarnish a selection exercise ab ovo, which in certain circumstances may only be remediated with the dismissal of the staff member.
Appeal dismissed and UNDT Judgment affirmed.