UNDT/2016/177, Bertrand
The sanction was based on a finding that the Applicant had engaged in misconduct when he left a hand-held radio and an MP5 9 mm submachine gun with two magazines and approximately 60 rounds of ammunition UNATtended in a UN vehicle that he had been operating, resulting in these items being stolen when an unknown person or persons broke into that vehicle while the Applicant waited several minutes in a restaurant for a take-out meal. The UNDT Tribunal found that the imposed sanction was not manifestly unreasonable, unnecessarily harsh, obviously absurd or flagrantly arbitrary. It was within the range of what was reasonably available to the Secretary-General. The application was rejected.
On 12 May 2016, the Applicant, a former Security Officer, Security Operations Unit, United Nations Stabilization Mission in Haiti (“MINUSTAH”), filed an application contesting the imposition of a disciplinary sanction consisting of separation from service with compensation in lieu of notice and with termination indemnity, under staff rule 10.2(a)(viii).
Judicial review of proportionality: The Tribunal will give due deference to the Secretary-General unless the decision is manifestly unreasonable, unnecessarily harsh, obviously absurd or flagrantly arbitrary. Should the Dispute Tribunal establish that the disciplinary measure was disproportionate, it may order imposition of a lesser measure. However, it is not the role of the Dispute Tribunal to second-guess the correctness of the choice made by the Secretary-General among the various reasonable courses of action open to him. Nor is it the role of the Tribunal to substitute its own decision for that of the Secretary-General.