2023-UNAT-1368, Wassim Saleh
The UNAT held that there was no reason why the Appeals Tribunal should intervene and modify the UNDT’s findings, which were both reasonable and equitable. The UNAT noted that while the hiring of the casual workers was not part of Mr. Saleh’s official duties, Mr. Saleh coordinated and supervised the work of the UNHCR implementing partner which was responsible for hiring at the warehouse, and Mr. Saleh also had the function of overseeing the warehousing operations. Given these responsibilities, as well as his previous intense involvement in the setting up and management of the warehouse, which had an established method of recruiting daily workers, the UNAT agreed that it was understandable that Mr. Saleh forwarded some names of persons he knew from the local community for possible recruitment for casual work. The UNAT also observed that the UNHCR implementing partner knew that Mr. Saleh did not have supervisory authority over them with respect to hiring. The UNAT also agreed with the UNDT that UNHCR management had not given Mr. Saleh sufficient guidance on his new role and the hiring of casual workers. Accordingly, the UNAT agreed with the UNDT’s finding that the sanction of termination of his appointment was disproportionate. The UNAT thus rejected the Secretary-General’s cross-appeal.
With regard to Mr. Saleh’s request for three-years’ net base salary for compensation in lieu, the UNAT held that the UNDT had correctly awarded an amount equivalent to his salary for the period between the date of his unlawful termination until the expiry of his fixed-term appointment. Although Mr. Saleh argued that his appointment was likely to be renewed, the UNAT held that this was contrary to the well-established principles that fixed-term appointments carry no expectation of renewal. The UNAT also held that Mr. Saleh’s claim of compensation for moral harm was far-fetched and unsupported by the evidence. Accordingly, the UNAT held that the UNDT did not err in its compensation determination. The UNAT dismissed his appeal.
In Judgment No. UNDT/2022/064, Mr. Saleh contested the decision of UNHCR to separate him from service as a disciplinary measure for his actions in pressuring two managers who worked for another entity to hire certain individuals as day laborers. The UNDT granted his application and rescinded the decision. Mr. Saleh appealed the amount of compensation in lieu that was awarded by the UNDT; and the Secretary-General cross-appealed the UNDT’s determination that Mr. Saleh’s actions did not constitute misconduct.
With respect to the scope of judicial review in disciplinary cases, it is well-settled that the role of the Dispute Tribunal is to examine: i) whether the facts on which the disciplinary measure is based have been established; ii) whether the established facts amount to misconduct; iii) whether the sanction is proportionate to the offence; and iv) whether the staff member’s due process rights were respected. When termination of the staff member’s appointment is the disciplinary sanction imposed, the Administration must demonstrate clear and convincing evidence that the staff member committed the misconduct to support this severe outcome.
The Administration is bound by the motives established in a disciplinary sanction letter. The inclusion of stated reasons for a decision are essential for both the Dispute and Appeals Tribunals to exercise judicial review of administrative decisions, including assessing whether they were arbitrary, capricious, or unlawful.
The Appeals Tribunal is not an instance for a party to reargue the case without identifying the specific defects and demonstrating on which grounds the impugned Judgment is erroneous.
The principle of proportionality requires that a disciplinary measure imposed on a staff member shall be proportionate to the nature and gravity of their misconduct. The Administration has discretion to impose a disciplinary measure that it considers appropriate to the circumstances of a case, and the Tribunal should not interfere with administrative discretion unless it is tainted by irrationality or is arbitrary.
Accepting the submission that general due deference should be shown without question to the Secretary-General’s administrative decisions would negate the power of review and leave the officials of the Administration free from judicial supervision over their employment decisions.
Although the Appeals Tribunal exercises discretion in establishing the amount of in-lieu compensation, it shall ordinarily give some justification and set an approximate amount that it considers is an appropriate substitution for rescission or specific performance in the circumstances. In other words, compensation must be set following a principled approach and on a case-by-case basis.
The determination of the amount of in-lieu compensation will depend on the circumstances of each case, but some relevant factors that can be considered, among others, are the nature of the post formerly occupied, the remaining time to be served by a staff member on their appointment, and their expectancy of renewal.