2022-UNAT-1231, Sergio Arvizu Trevino
UNAT held that the Appellant had no standing to seek consideration by a full bench. UNAT held that to the extent UNDT engaged in a fact-finding exercise of its own, this was not a legitimate exercise of its competence. UNAT held that the Administration’s failure to provide adequate reasons for the contested decision resulted in the contested decision being unlawful. UNAT held that the Administration’s failure to exercise its discretion with regard to carrying out an investigation also rendered the contested decision unlawful. UNAT allowed the appeal in part. UNAT vacated the UNDT Judgment by rescinding the decision not to convene an investigation panel to investigate the Appellant’s harassment complaint and directed the Administration to lawfully exercise its discretion in this regard.
The Appellant contested the decision not to convene an investigation panel to investigate his harassment complaint. UNDT dismissed his application.
A decision to refer a matter for consideration by a full bench is a matter for the panel or the President of UNAT; the Appellant has no standing to seek consideration by a full bench. The instigation of disciplinary charges against a staff member is the privilege of the Organisation itself, and it is not legally possible to compel the Administration to take disciplinary action. The administration has a degree of discretion as to how to conduct a review and assessment of a complaint and whether to undertake an investigation regarding all or some of the allegations. There are situations where the only possible and lawful decision of the Administration is to deny a staff member’s request to undertake a fact-finding investigation against another staff member. The Administration has not validly exercised its discretion if it has addressed a particular administrative matter in the same way it always has without any additional considerations or has operated under the erroneous belief that it was fettered to make a specific choice, to the exclusion of all other choices amongst the various courses of action open to it; in these situations the Administration has, illegally, not engaged in a balancing exercise of the competing interests by considering all aspects relevant for the exercise of its discretion, in order to select the proper course of action. The right of employees to form and join organisations of their own choosing is an integral part of a free and open society. The principle of freedom of association is one of the principles of law that must be observed by the organisations of the United Nations Common System. An administrative decision which adversely impacts on a staff member’s status must be reasoned in order for the Tribunals to have the ability to perform their judicial duty to review administrative decisions and to ensure protection of individuals. A harmful administrative decision must be fully and adequately motivated; the reasoning must be sufficiently clear, precise, and intelligible; and a generic reasoning befitting every case is not enough and renders the decision unlawful. A staff association enjoys broad freedom of speech and the right to take to task the administration of the organisation whose employees it represents. Freedom of speech must be protected, particularly for officers of a staff association, so that they are not hampered in their task of representing the membership when in dispute with the Administration. The freedom of discussion and debate is not absolute and has its bounds; a staff representative’s public statements must not impair the dignity of the international civil service. There is a fine balance to be struck between the individual and collective rights and freedoms enjoyed by United Nations staff members and their staff associations and staff representatives, and the need for them to conduct themselves publicly (both at and outside work) in accordance with the standards and aspirations of the United Nations and not to abuse their rights and freedoms. UNDT is not clothed with jurisdiction to investigate harassment complaints under Article 2 of the UNDT Statute.