����AV

i. Whether the Applicant’s suspension of 26 May 2006 was lawful: The Tribunal found that the Chief of Security/UNON unilaterally and verbally suspended the Applicant in breach of the Staff Rules at that time. It was noted that such a decision could only be made by the Assistant Secretary-General, Office of Human Resources Management (ASG/OHRM) who was the properly delegated individual. Further, the Applicant was not given reasons for his suspension and the suspension was not made in conjunction with a charge of misconduct. ii. Whether the Applicant was lawfully placed on SLWFP: The Tribunal noted that the reasons for granting special leave are set out clearly in the rule and that the rule confers a general power on the Secretary-General to grant special leave in exceptional cases. However, the specific grounds on which special leave may be granted does not include disciplinary cases. In this case, the Chief/HRMS had no power to put the Applicant on SLWFP. The Tribunal found that the decision of the Chief/HRMS was unwise and unlawful. iii. Whether the Organization followed laid down procedures in handling the waiver of immunity, arrest and detention of the Applicant The UN Charter provides that officials of the Organization shall enjoy privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization. Once specific procedures are followed, waiver of immunity can be granted if it is in the interest of the Organization or where immunity would impede the course of justice. The Tribunal found that the Applicant was arrested without official waiver of immunity and that even after his arrest there was no formal protest made against his arrest. The Tribunal found that the procedures in the relevant UN rules and administrative issuances with respect to the handling of the arrest and detention of the Applicant by the Kenya Police were not followed by those charged with making complex legal and diplomatic decisions on immunity and its waiver. iv. Whether the decision to reprimand the Applicant for refusing to hand over his firearm was lawful: The Tribunal noted that insubordination is the wilful failure to obey a lawful order of a supervisor, therefore requiring more than proof of refusal of an instruction. There is a requirement that the instruction has to be both lawful and reasonable. The Chief of Security did not inform the Applicant of the reason behind his request for him to hand over his personal firearm and he did not reassure the Applicant of the lawfulness of his request. The Tribunal found that the Applicant’s refusal did not amount to insubordination and therefore the decision to reprimand him was inappropriate. v. Whether the transfer of the Applicant from the UNON Department of Safety and Security Services to the UNON Division of Conference Services was vitiated by lack of due process: Although the Applicant was not consulted before the decision to reassign him was made, the Tribunal found that it was a lawful exercise of discretion. Given the history of the events that took place, the Tribunal considered that it was a prudent management decision to avoid the almost inevitable conflict that would have occurred if the Applicant had returned to work for the Safety and Security Services.