UNDT/2011/104, Goodwin
The Tribunal found that the initial imposition of the reprimand was justified based on the Applicant’s own admitted supervisory failings. However, the Tribunal found that the withdrawal and subsequent reinstatement of reprimand were improper, as was the decision to transfer the Applicant from his post. The Tribunal directed the parties to confer on the issue of compensation.
Reprimand.
An employer may not reopen a matter and is bound by the principle that an employee, once he has been dealt with on charges arising from a particular set of facts, cannot be tried again on new charges arising from the same facts. The desirability of finality of disputes within the workplace cannot be gainsaid. The Secretary-General has a discretionary authority in the administration of the affairs of the Organisation which will not lightly be interfered with by the Tribunal. In order for the Tribunal to intervene, what must be shown is a failure of the Secretary-General to exercise this discretionary authority reasonably in accordance with the law, i.e., not in a manner that is illegal, irrational, procedurally defective or where the outcome is disproportionate to what is necessary in the circumstances. Unsatisfactory or poor work performance arising from misconduct and that caused by circumstances beyond a worker’s control are treated differently since the culpability of the staff member is different. There may be instances where performance failures warrant disciplinary measures. Factors that may be taken into account include the position occupied by the staff member, his past record, the level of seniority, the length of service, the degree of culpability, the risk to the organisation as a result of the conduct, etc. In general, higher standards of competence and performance are expected of senior managerial employees. Factors like inadequate resources or organisational problems are to be taken into account as part of a proper investigation and assessment. Failing to fulfill a proper supervisory role may constitute dereliction of duty warranting disciplinary action, not just administrative action. In respect of an administrative measure, as provided for in, for example, former staff rule 110.3(b)(i), a staff member is entitled to the same kind of review by the Tribunal as he would have received if the measure had been a disciplinary one.