����AV

The onus of preponderance of evidence during the disciplinary investigation: In the present case, this standard would have been satisfied only if a hand-writing expert contracted by the OIOS had been requested during the investigation to review the relevant forms and the supporting documents submitted by the Applicant, and if this expert had concluded that these documents were false and the Applicant had prepared these documents herself. This was done in a similar disciplinary case where the sanction of dismissal was applied to another staff member on 30 November 2015. The nature and purpose of a disciplinary sanction: A United Nations staff member’s disciplinary liability is of a contractual nature. It consists of a sanction applied by the Organization that has both sanctioning and preventive (educational) functions. The necessary and sufficient condition for the disciplinary liability to be determined by Organization is the existence of misconduct. The individualization of a sanction is very important because only a fair correlation between the sanction and the gravity of the misconduct will achieve the educational and preventive role of disciplinary liability. Applying a disciplinary sanction cannot occur arbitrarily but must be based on the application of rigorous criteria. The purpose of the disciplinary sanction is to punish adequately the guilty staff member, while also preventing other staff members from acting in a similar way.The gravity of the misconduct: The “gravity of misconduct” is related to the subjective element of misconduct (guilt) and to the negative result/impact of the illegal act/omission. If there is no guilt, there cannot be a misconduct and consequently no disciplinary liability. In order to appreciate the gravity of a staff member’s misconduct, all of the existing circumstances that surround the contested behavior, which are of equal importance, have to be considered and analysed in conjunction with one another, namely: the exonerating, aggravating and mitigating circumstances. Some circumstances may completely exonerate a staff member from disciplinary liability such as: self-defense, state of necessity, force majeure, disability, or error of fact. The consequences of the misconduct, previous behaviour, as well as prior disciplinary record can either constitute aggravating or mitigating circumstances. Sometimes, in exceptional cases, they can directly result in the application of even the harshest sanction (dismissal), regardless of whether or not it is the staff member’s first offence. Compensation: The compensation established in accordance with art. 10.5(a) of the Statute is mandatory and directly related to the rescission of the decision and/or to the ordered specific performance and is distinct and separate from the compensation for harm which may be ordered based on art. 10.5 (b) of the Statute. The Tribunal has the option to order one or both remedies, so the compensation mentioned in art. 10.5(b) can represent either an additional legal remedy to the rescission of the contested decision or can be an independent and singular legal remedy when the Tribunal decides not to rescind the decision. The only common element of the two compensations is that each of them separately “shall normally not exceed the equivalent of two years net base salary of the applicant”, respective four years if the Tribunal decides to order both of them. In exceptional cases, the Tribunal can establish a higher compensation and must provide the reasons for it.UNDT’s remedies when considering a disciplinary decision: When the Tribunal considers an appeal against a disciplinary decision, the Tribunal can decide to: (a) confirm the decision; (b) rescind the decision if the sanction is not justified and set an amount of alternative compensation; (c) rescind the decision, replace the disciplinary sanction considered too harsh with a lower sanction and set an amount of alternative compensation; or (d) set an amount of compensation in accordance with art. 10.5(b). Moral damages in disciplinary cases: A severe disciplinary sanction like a separation from service or dismissal is a work-related event which generates a certain emotional distress. This legal remedy generally covers both the moral distress produced to the Applicant by the illegal decision to apply an unnecessarily harsh sanction and the material damages produced by the rescinded decision. The amount of compensation to be awarded for material damages must reflect the imposition of the new disciplinary sanction and consequently will consist of a partial compensation. Effect of rescinding a termination decision: Rescission of such decision does not automatically imply the reinstatement of the parties into the same contractual relation that existed prior to the termination. According with the principle of availability, the Tribunal can only order a remedy of reinstatement if the staff member requested it. Furthermore, reinstatement cannot be ordered in all cases where it is requested by the staff member, for example, if during the proceedings in front of the Tribunal the staff member reached the retirement age, is since deceased or her/his contract expired during the judicial proceedings, or in cases where the sanction of dismissal is replaced with the lesser sanction of separation from service with or without termination indemnity.