UNDT/2016/184, Michaud
The Applicant, a UNDP Investigations Specialist at the P-4 level, contested three decisions. The appeal against two decisions was found not to be receivable ratione materiae: a preliminary decision and failure to request management evaluation. The third decision concerned the imposition of a written reprimand as an administrative measure against Applicant. The Tribunal rejected the Applicant’s appeal regarding the third decision on the merits.
a. “[D]ecision to allow the conduct of an unlawful investigation in violation of UN/UNDP procedures and of due process;” b. “[D]ecision to issue a reprimand based on such illegal investigation and its highly disputed evidence;” c. “[D]ecision, in spite of the above irregularities, to prolong and compound the harm caused to the reputation, health and contractual rights of Applicant and of his family, by denying him due process under the UNDP Performance Plan Assessment procedures and UN Staff Rule 1.3, with a threat to use the unlawful [Office of Audit and Investigation Services, “OAIS”] investigation report in the future.”
No disclosure of documents between Counsel and client regarding settlement negotiations: According to art. 15.7 of the Rules of Procedure, all documents prepared for and oral statements made during any informal conflict-resolution process or mediation are absolutely privileged and confidential and shall never be disclosed to the Dispute Tribunal.Furthermore, it is a common legal standard that case-related communications between a lawyer and her or his client are privileged and confidential.Receivability: It is the consistent jurisprudence of the Appeals Tribunal that the Dispute Tribunal shall examine its own competence, even if this is not contested by any of the parties (see, for instance, O’Neill 2011-UNAT-182, Christensen 2013-UNAT-335, and Tintukasiri et al. 2015-UNAT-526).Judicial review test in a case of imposition of the administrative measure of a written reprimand following an investigation into misconduct: While it could be argued which judicial review test should be followed in a case like the present one which concerns the imposition of the administrative, as opposed to the disciplinary measure of a written reprimand pursuant to staff 10.2(b)(i) following an investigation into allegations of misconduct under staff rule 10.1 (for instance, the tests of Sanwidi 2010-UNAT-084 or Applicant 2013-UNAT-302), the difference appears to be of more theoretical than substantive. Thus, in either case, the assessment would necessarily entail an examination of the same basic elements, namely: was the decision-making process fair and in compliance with appropriate due process rules; was the decision based on reliable evidence; and was the outcome proportionate.Ulterior motives: It is for the Applicant to substantiate the existence of any ulterior motives (see, for instance,Parker 2010-UNAT-012).